BACKGROUND
Aragon Advertising LLC (“Aragon”) is a performance marketing company offering various marketing, advertising, and related services through different business units and service offerings. The nature and scope of services may differ by engagement.
This Master Service Agreement (the “MSA”) is intentionally structured in multiple parts. Part I (General Terms) establishes the baseline legal framework governing the parties’ relationship. Part II (Service Terms), together with any applicable statements of work(“SOW”), insertion orders(“IO”), addendum or exhibits, sets forth terms applicable only to the specific services identified therein. Unless otherwise expressly stated, Part I applies to all services provided under the Agreement.
PART I — GENERAL TERMS
Services. Aragon provides performance marketing, advertising, lead generation, affiliate management, and other related marketing services, as may be further described in Part II (collectively, the “Services”). The specific scope, deliverables, timelines, and applicable commercial terms for the Services will be set forth in the applicable Service Terms of Part II and in one or more applicable IOs or SOWs, each executed by Aragon and the client or advertiser identified in the applicable IO or SOW (“Client” or “Advertiser”) from time to time, in connection with the Services provided to Advertiser by Aragon and Aragon’s advertising network (“Network”) of third-party affiliates (“Aragon’s Affiliates”). Aragon and Client are referred to herein individually as a “Party” and collectively as the “Parties.”
Client’s access to and use of Aria Platform shall be subject to the ARIA TERMS AND CONDITIONS
Definitions and Interpretation. The following defined terms apply throughout this MSA. Additional defined terms may be set forth in Part II and the applicable IO(s) and/or SOW(s).
“Applicable Laws” means all applicable federal, state, and local laws, statutes, rules, standards, regulations, and policies related to the Services, including without limitation those relating to online and direct marketing, telemarketing, digital and mobile marketing, lead generation and advertising, banking and consumer credit, privacy and data protection, and all other laws related to the Services.
“Confidential Information” means any confidential and/or proprietary data provided by one Party (“Discloser”) to the other Party (“Recipient”), including but not limited to suppression lists, Client Materials, Creative, conversion rates, response rates, business plans, strategies, know-how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable information (“PII”), pricing, technology, employee information, trade secrets, and other non-public or proprietary information, whether written, verbal, recorded, or in any other media or format, and any information marked or designated as “Confidential Information” or that should reasonably be understood as confidential. Notwithstanding the foregoing, “Confidential Information” does not include information that: (a) was previously known to the Recipient without restriction; (b) was or becomes generally available to the public through no fault of the Recipient; (c) was rightfully in the Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated by the Discloser; or (d) was developed by employees or agents of the Recipient independently of and without reference to any information communicated by the Discloser.
“Client Materials” means Client IP, Links, marketing and other materials used to develop and create the Creative. For avoidance of doubt, Client Materials include without limitation, any part of the Creative provided, created, or otherwise contributed by Client.
“Client Properties” means Client owned, operated, controlled, or associated websites, social media communications, app stores, marketplaces, and other digital distribution platforms.
“Creative” means the proprietary advertising materials, advertisements and any components or elements to achieve the deliverables, including without limitation, banner ads, emails including the body, header and subject lines, ad bop, contextual ads, scripts and/or other content that comprises the Creative.
“IP” means intellectual property, including without limitation patents, copyrights, trademarks, trade secrets, software, technology, know-how, inventions (whether or not patentable), and other proprietary rights.
A “Force Majeure Event” means an event or circumstance beyond the reasonable control of, and without the fault or negligence of, the affected Party, which the Party is unable to prevent or mitigate through the exercise of reasonable diligence, including but not limited to acts of God, fires, floods, earthquakes, explosions, war, terrorism, cyber-attacks, rebellion, labor strikes, failure of suppliers or carriers, or acts or interventions by any governmental authority.
Term and Termination. This MSA shall commence on the Effective Date of the first applicable IO or SOW executed by both Parties and shall remain in effect until all IOs, SOWs, and other applicable services issued hereunder have been completed or terminated in accordance with the terms of this MSA, unless earlier terminated as provided herein. Notwithstanding any termination of this MSA, any provisions that may reasonably be expected to survive termination of the MSA, and any accrued but unpaid payment obligations, shall survive and remain in effect in accordance with their terms.
Fees, Invoicing, and Payment
Invoicing. Aragon will invoice Client as specified in the applicable Schedule, IO or SOW. Each invoice will set forth the amounts due based on the agreed pricing structure, including transaction-based fees, performance commissions, or retainer fees, as applicable, less any prepayments or credits.
Payment Terms. Client shall pay all undisputed amounts within the number of days specified in the applicable Schedule, IO or SOW from the invoice date. Interest on past-due amounts will accrue at 1.5% per month or the maximum rate permitted by Applicable Law, whichever is greater, compounded monthly. Client shall also be liable for Aragon’s reasonable attorneys’ fees and collection costs incurred in collecting any unpaid amounts.
Currency. Payments must be made in U.S. dollars, unless otherwise specified in an applicable IO or SOW.
Taxes. Except for Aragon’s income taxes, Client is responsible for all applicable taxes, duties, or tariffs in connection with payments under this MSA.
Payment Methods. Payments may be made by wire transfer, check, or, subject to Aragon’s prior written approval, by credit card, in which case Client shall submit a completed Credit Card Authorization Form to Aragon. Checks shall be made payable to Aragon Advertising LLC, 66 Mineola Avenue #1355, Roslyn Heights, NY 11577. Wire payments shall be made to Aragon’s U.S. banking account at Citibank, N.A., BR. #940, 153 East 53rd St., 24th Floor, New York, NY 10022.
Adjustments and Out-of-Scope Work. Adjustments to budget, rates, or volume caps require prior written notice and mutual written agreement. Out-of-scope services, if any, will be billed separately at agreed rates, with invoices detailing hours, services, and reimbursable expenses.
Client Payment Obligation. Client is solely liable for payment to Aragon, regardless of any third party’s payment obligation to Client. Notwithstanding any other provision of this MSA, Aragon shall have the right to suspend any or all marketing campaigns or Services while payments remain outstanding and to require prepayment under terms it deems appropriate. Any agreed new or modified payment terms will supersede prior arrangements.
Confidentiality and Data Protection
Standard of Care. The Recipient shall use the same degree of care to protect the Discloser’s Confidential Information as it uses to protect its own similar information, but in no event less than reasonable care. The Recipient shall use Confidential Information solely for the purpose of performing its obligations under this MSA, and shall not disclose such information to any third party except to its employees, agents, contractors, or affiliates who have a need to know such information and who are bound by written confidentiality obligations no less protective than those set forth herein.
Restrictions on Reproduction. The Recipient shall not copy or reproduce Confidential Information without the Discloser’s prior written consent, except that one (1) copy may be made for backup or archival purposes.
Required Disclosure. The Recipient may disclose Confidential Information if required to do so by law, regulation, or valid order of a court or governmental authority, provided that (to the extent legally permitted) the Recipient gives prompt written notice to the Discloser and reasonably cooperates with the Discloser to seek a protective order or otherwise limit the scope of such disclosure. The Recipient shall disclose only that portion of the Confidential Information legally required to be disclosed.
Remedies. Any breach of this Section 5 shall constitute a material breach of this MSA and may cause irreparable harm for which monetary damages may be insufficient. Accordingly, the Discloser shall be entitled to seek equitable and injunctive relief, without the requirement to post bond or prove damages, in addition to any other remedies available at law or in equity, including recovery of reasonable attorneys’ fees and expenses.
Permitted Disclosures. Notwithstanding the foregoing, Aragon may: (i) disclose the terms of this MSA, any applicable IO and/or SOW to Aragon Affiliates; and (ii) disclose email suppression lists to third-party vendors providing email list management services, provided such vendors are bound by confidentiality obligations no less protective than those set forth herein.
Ownership; Return or Destruction. This MSA does not transfer ownership of or grant any license to Confidential Information, and the Discloser retains all right, title, and interest therein. Upon termination or expiration of this MSA, or upon the Discloser’s written request, the Recipient shall promptly return or destroy all Confidential Information (and certify such destruction in writing upon request), except to the extent retention is required by Applicable Law.
Survival. This Section 5 shall survive termination or expiration of this MSA for a period of three (3) years.
Mutual Representations and Warranties
Authority and Capacity. Each Party represents and warrants to the other Party that: (a) it has the full corporate right, power, and authority to enter into this MSA, any applicable IO and/or SOW, to grant the rights and licenses granted hereunder, and to perform its obligations hereunder; (b) the execution of this MSA and the performance of its obligations do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) upon execution and delivery, this MSA constitutes a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms.
Legal Compliance. Each Party further represents, warrants, and covenants that it shall comply, and shall cause its employees, agents, affiliates, and contractors to comply, with all Applicable Laws in connection with its performance under this MSA.
Intellectual Property. Each Party represents and warrants that it owns or has sufficient rights, licenses, and permissions to use, and to permit the other Party to use, any materials, content, or creative assets it provides under this MSA, and that such materials do not infringe, misappropriate, or otherwise violate any intellectual property or other rights of any third party.
No Unlawful Conduct. Each Party agrees that it will not use or distribute any materials that are unlawful, fraudulent, or obtained through illegal means, and will not engage in any conduct that would violate Applicable Laws in connection with the Services or its obligations under this MSA.
Indemnification
Client will indemnify, defend and hold harmless Aragon, Aragon’s Affiliates and each of their respective directors, officers, managers, members, employees, agents, successors and assigns (each, an “Aragon Indemnitee”), from and against any and all loss, penalties, fines, damages, claims, expenses, (including attorneys’ fees) or liabilities arising out of, or resulting from: (a) Client’s alleged breach of any of its representations, warranties or material obligations under this MSA; (b) Client’s violation of applicable law, willful, fraudulent or grossly negligent acts or omissions; and (c) the content of Client’s websites and/or Creative.
If an Aragon Indemnitee seeks indemnification under this MSA, the Aragon Indemnitee will give prompt notice to Client of the claims, and Client will assume the defense of such claim. Aragon shall provide at Client’s expense such information, co-operation and assistance to Client as may be reasonably necessary for Client to defend or settle the claim or action. Aragon’s failure to give prompt notice will not waive its right to indemnification. An Aragon Indemnitee may participate, at its own expense, in any defense and settlement directly or through counsel of its choice. Client may not, enter into any settlement agreement without Aragon’s written consent. If Client breaches its obligations under this Section 7.2, the Aragon Indemnitee(s) may defend or settle the claim and Client must promptly reimburse the Aragon Indemnitee(s) for all associated costs, expenses, settlement amounts and other damages.
In the event Aragon shall be required by a regulatory or judicial body to produce, deliver or furnish any materials or information with respect to Client or its affiliates pursuant to any request, inquiry, examination, demand, order or subpoena or under applicable law or regulations, then Client shall be responsible for and shall promptly pay, reimburse and indemnify Aragon for all out-of-pocket expenses incurred (including, without limitation, reasonable attorney’s fees) and for the time spent by Aragon’s personnel charged on a time and material basis.
Disclaimer of Warranties; Limitation of Liability
DISCLAIMER OF WARRANTIES. THE NETWORK, SERVICES, CREATIVE MATERIALS, ACQUISITIONS, LEADS, COMPENSABLE TRANSACTIONS AND TRANSACTION TRACKING CODES PROVIDED BY ARAGON UNDER THE MSA ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, ARAGON MAKES NO WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE), REPRESENTATIONS, OR GUARANTEES, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ARAGON DOES NOT WARRANT OR GUARANTEE COMPENSABLE TRANSACTIONS, CONVERSION RATES AND/OR RESPONSE RATES; THE NETWORK, SERVICES, CREATIVE MATERIALS, ACQUISITIONS, LEADS AND/OR TRANSACTION TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS. ARAGON DOES NOT WARRANT OR GUARANTEE THE SECURITY METHODS OR PRIVACY PROTECTION PROCEDURES OF ANY THIRD-PARTY, OR THAT SUCH SECURITY METHODS OR PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR FREE. ARAGON HAS NO LIABILITY FOR ADVERTISER’S USE, OR INABILITY TO USE, THE NETWORK, SERVICES, CREATIVE MATERIALS, ACQUISITIONS, LEADS, COMPENSABLE TRANSACTIONS AND/OR TRANSACTION TRACKING CODES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, THAT ADVERTISER’S USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE.
LIMITATION OF LIABILITY. EXCEPT FOR INSTANCES INVOLVING WILLFUL MISCONDUCT, IN NO EVENT SHALL ARAGON BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF ARAGON HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN NO EVENT SHALL ARAGON’S LIABILITY UNDER ANY CAUSE OF ACTION EXCEED THE AMOUNTS PAID TO ARAGON BY ADVERTISER UNDER THE MSA DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
Miscellaneous
Entire Agreement; Construction. Part I, Part II, together with all incorporated IOs and SOWs, represents the complete and entire agreement between the Parties and supersedes all prior or contemporaneous agreements, whether written or verbal, between the Parties relating to its subject matter. In the event of any conflict or discrepancy between Part I, Part II, and the terms of any IO or SOW, the following order of precedence shall apply: (1) the IO or SOW; (2) Part II; and (3) Part I, unless expressly stated otherwise. This MSA shall be construed as if both Parties equally participated in its drafting and shall not be construed for or against the drafter.
Assignment. Except for Aragon’s right to subcontract to Aragon’s Affiliates, neither Party may assign, transfer, or delegate any of its rights or obligations under this MSA without the prior written consent of the other Party. Any attempt to assign without consent is null and void. Notwithstanding the foregoing, either Party may assign this MSA without the other Party’s consent: (a) to an affiliate of such Party; or (b) in connection with a sale of all or substantially all of its assets, a stock sale, merger, or other corporate reorganization resulting in a change of control. Any permitted assignee must agree in writing to be bound by the terms of this MSA. This MSA shall inure to the benefit of, and be binding upon, the Parties and their successors and permitted assigns.
Independent Contractors. The Parties are independent contractors. There is no relationship of partnership, agency, employment, franchise, or joint venture between the Parties. Neither Party has the authority to bind the other or incur any obligation on its behalf.
Governing Law; Jurisdiction. This MSA will be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this MSA or the Services provided hereunder must be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court. THE PARTIES HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION OR PROCEEDING, DIRECTLY OR INDIRECTLY, ARISING OUT OF, OR RELATING TO, THIS MSA TO THE FULLEST EXTENT PERMITTED BY LAW.
Mediation Requirement. Prior to either Party filing any legal suit, action, or proceeding arising out of or related to this MSA, the parties agree to attempt to resolve the matter via mediation. Any mediation that takes place in accordance with this section shall take place in New York, NY unless Aragon agrees otherwise in its sole discretion. The parties shall cooperate in selecting a mutually agreeable mediator in good faith. In the event the parties cannot agree upon a mediator, each Party shall select one name from a list of mediators maintained by any bona fide dispute resolution provider or other private mediator, and the two selected mediators shall then choose a third person who shall serve as mediator. The parties acknowledge and agree that any mediated settlement agreement may be converted to a judgment and enforced according to applicable New York, NY law and rules of civil procedure. The parties agree to share the mediator’s fees equally. In the event that either Party fails to cooperate in a reasonable manner in the scheduling, facilitation, or conduct of the mediation contemplated herein, then the cooperating Party will have the right to recover from the non-cooperating Party the cooperating Party’s costs and reasonable attorneys’ fees incurred in connection with any subsequent legal suit, action, or other proceeding, including costs, fees, and expenses on appeal regardless of which Party succeeds on the merits and regardless of any other fee shifting provision in this MSA.
Notices. Except as specifically provided herein, all notices required under this MSA must be in writing and must be given by: (a) personal delivery, effective upon delivery; (b) national overnight courier service, effective one (1) business day following deposit; (c) email or facsimile transmission, effective upon confirmation of transmission; or (d) certified or registered mail, return receipt requested, effective upon verification of receipt. Notices shall be sent to the addresses set forth in the applicable IO or SOW, or such other address as a Party may specify in writing.
Waiver. No waiver of any breach of any provision of this MSA shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provision, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
Severability. If any provision of this MSA is determined to be invalid, illegal, or unenforceable under applicable law, such provision shall be severed and replaced with a new provision that most closely reflects the Parties’ original intent, and the remaining provisions shall remain in full force and effect.
Force Majeure. Except for Client’s contractual payment obligations, neither Party shall be liable for delays in performing or failure to perform its obligations under this MSA if such delay or failure is caused by a Force Majeure Event. The affected Party shall: (i) promptly notify the other Party; (ii) use good-faith efforts to minimize the effects of such event and resume performance as soon as practicable; and (iii) be entitled to a reasonable extension of time to perform its affected obligations.
Binding Effect. This MSA shall inure to the benefit of, and be binding on, the Parties and their successors and permitted assigns.
Headings. Section headings are for convenience of reference only and shall not affect the construction or interpretation of this MSA.
Modifications. Aragon reserves the right to modify, amend, or update the terms of Part I and/or Part II at any time, in its sole discretion. Any such changes will be effective upon posting the revised term on Aragon’s website or providing notice to Client, whichever occurs first. By continuing to use the services after such modifications, Client agrees to be bound by the updated terms.
Electronic Signatures. Each Party acknowledges and agrees that electronic signatures have the same legal effect as manual signatures. An “Electronic Signature” means any electronic sound, symbol, or process attached to or associated with a record, executed with the intent to sign the record. The Parties consent to the use of electronic signatures, contracts, orders, and records in accordance with the Electronic Signatures in Global and National Commerce Act (E-Sign Act) and the New York State Electronic Signatures and Records Act (N.Y. State Tech. Law §§ 301–309). Notwithstanding the foregoing, where an individual executes any IO, SOW or related document on behalf of a Client, such individual expressly represents and warrants that they are duly authorized to bind the Client and, by such execution, further agrees to be personally liable and unconditionally guarantee the payment and performance of all obligations, fees, and amounts due under this MSA and any applicable IO or SOW on behalf of the Client.
Survival. All provisions of this MSA that, by their nature, are intended to survive expiration or termination, together with any accrued but unpaid payment obligations, shall survive, regardless of the reason for such expiration or termination.
PART II —SERVICE TERMS
SCHEDULE A: ADVERTISING SERVICES TERMS
SCHEDULE B: VIBRANT AFFILIATE MANAGEMENT TERMS
SCHEDULE A: ADVERTISING SERVICES TERMS
These Advertising Services Terms (“Schedule A”), effective as of the effective date of the first signed IO (“Effective Date”), govern Aragon’s performance marketing, advertising, and lead generation services (collectively, “Services”). Together, the General Terms of Part I of the MSA, the terms of this Schedule A and any applicable IOs form the complete agreement between the Parties (the “Agreement”). Capitalized terms not defined herein have the meanings ascribed to them in Part I.
Insertion Orders and Campaigns
Aragon agrees to perform the Services and undertake the marketing campaigns (each a “Campaign”) as set forth on an applicable Insertion Order or in a written message(s) (each, an “IO”). Aragon’s obligations under this Agreement may be contingent upon Aragon’s approval of the results of a credit check of Client.
Each IO must set forth the applicable Compensable Transactions and any other relevant terms and conditions of the Campaigns. “Compensable Transaction” means a transaction identified in an IO that is generated by Aragon or Aragon’s Affiliates on behalf of Client, including, but not limited to, conversions, clicks, impressions, sales/actions, installs/downloads, telephone calls, telephone call transfers, applications, leads, and acquisitions.
“Payout” means the monetary amount that Client shall pay Aragon for achieving each Compensable Transaction. The Payout may be described in a dollar amount as a percentage or in other manner agreed upon by the Parties in an IO.
As used in this Agreement, (a) “CPA” means cost per acquisition; (b) “CPC” means cost per click; (c) “CPM” means cost per thousand impressions; and (d) “CPI” means cost per install.
“Conversion” or “Converts On” means the terms upon which a transaction becomes a Compensable Transaction, which shall be set forth in an IO.
“Minimum Conversion Rate” means the number of Compensable Transactions for which Client shall pay Aragon during a CPA campaign. If the Parties agree to a Minimum Conversion rate, it shall be set forth in the applicable IO. The Minimum Conversion Rate may be calculated as a percentage of the total number of transactions or in other manner agreed upon by the Parties in an IO.
No adjustment to any IO will be effective unless mutually agreed upon in writing. Unless otherwise set forth in an applicable IO, Client must provide Aragon at least two (2) business days’ prior written notice before any adjustment to budget (e.g., media spend), rate, and volume-cap will become effective.
An IO may set forth a budgeted estimate of the Fees (as defined in Paragraph 7.1) for Compensable Transactions and other compensation to be paid to Aragon in connection with a Campaign. All numbers and amounts relating to compensation for Compensable Transactions set forth in the IO are estimates. All such estimates or requests are non-binding, and Aragon shall have no obligation to deliver a minimum or maximum number of Compensable Transactions to Client. Due to the nature of advertising methods, over-delivery and under-delivery are typical. Client understands that the actual fees that become due and owing to Aragon arising under this Agreement shall ultimately be based upon the actual Compensable Transactions. In the event that Aragon produces a greater number of Compensable Transactions than budgeted in an IO, notwithstanding anything in this Agreement to the contrary, Client shall pay Aragon for all Compensable Transactions up to three hundred percent (300%) of the budgeted amount(s).
Aragon reserves the right to require pre-payment from Client prior to the start of any Campaign (“Pre-Payment”). Aragon shall have the right to pause or terminate a Campaign if Client fails to make the Pre-Payment. Unless the Parties agree otherwise on the applicable IO, Pre-Payments shall be applied to Fees due to Aragon in connection with a Campaign. Any unused portion of a Pre-Payment shall be applied to subsequent campaigns. Aragon shall have the right to require Client to replenish any Pre-Payments. Upon termination or expiration of a Campaign, any unused portion of a Pre-Payment shall be applied to Fees due to Aragon under the applicable Campaign first, and then to any Fees due to Aragon under any other Campaigns that are unpaid. Once all Fees due to Aragon are paid in full to Aragon, Aragon shall refund any unused portion of the Pre-Payment to Client unless the relevant IO states that the Pre-Payment is non-refundable.
Affiliate Network
Client acknowledges and agrees that Aragon has the right to subcontract its obligations under this Agreement through its Network of Affiliates, including the right to grant sublicenses in the Client Creatives, solely for the purpose of providing the Services.
Aragon shall not be obligated to investigate or resolve any claim or dispute between Client and any Aragon’s Affiliate, or other third-party, whether such claim or dispute involves the Client Creative, the Services, this Agreement, or any other matter. Aragon shall not be held liable or responsible for any actions or inactions of Aragon’s Affiliates.
Creative Materials
In connection with the Services, Aragon shall conduct Campaigns with Client, during which Aragon will distribute Creatives provided by Client (“Client Creatives”). Such Client Creatives may include, without limitation, in-app, mobile web, banners, buttons, text links, clicks, co-registrations, pop-ups, pop-unders, emails, social media, graphic files, websites and similar online media. Applicable Client Creatives shall be provided within two (2) business days after execution of an IO.
For the term of the Agreement, Client hereby grants to Aragon a non-exclusive, royalty-free, worldwide, revocable, sub-licensable license to: (a) use, perform, display, reproduce, transmit, modify, copy and distribute all the Client Creatives delivered hereunder in accordance with the terms of the Agreement; and (b) use all associated Client intellectual property in connection therewith. Client represents and warrants that it has all necessary rights in the Client Creatives and has the legal authority to grant the licenses and clearances set forth herein, and to permit the uses set forth in an IO. Title to and ownership of all intellectual property rights of all Client Creatives and associated Client intellectual property shall remain with Client or its third-party licensors, other than those portions that Aragon may prepare on Client’s behalf. Aragon does not represent or warrant that Creatives that it may prepare on Client’s behalf are legally compliant. Aragon assumes no obligation and hereby disclaims any liability for Client’s use of and/or reliance upon such Creatives.
Client may not alter, modify or otherwise change the Client Creatives, or any creative content-related feature, in any manner after submission to Aragon for approval without Aragon’s prior written consent. If Client does not obtain Aragon’s consent prior to modifying the Client Creatives, then: (a) Aragon can immediately terminate or suspend this Agreement; and (b) Client shall promptly pay Aragon an amount based upon the average conversion rate of the applicable Campaign prior to such modifications, as solely and reasonably determined by Aragon, for the period commencing from the time of the modification until such modifications are fully corrected to the reasonable satisfaction of Aragon.
Unless otherwise specified in an IO, Client shall maintain sole responsibility for Client Creatives provided to Aragon under this Agreement. Client acknowledges that Aragon is a mere passive conduit for the distribution of the Client Creatives with no responsibility to review the Client Creatives for accuracy or compliance with Laws. Aragon reserves the right, in its sole discretion and without liability, to (a) refuse any Client Creatives, or to cancel or remove any Client Creatives and/or Campaign that does not conform to every term, requirement, instruction, method, and guideline set forth in this Agreement, (b) reject, pause, omit, exclude or terminate any Client Creatives and/or Campaign for any reason at any time, with or without notice to Client, and whether or not such Client Creatives were previously acknowledged, accepted or published. Except as otherwise provided and subject to any requirement specifically set forth in the applicable IO, Aragon and/or its Affiliates shall have the exclusive right to determine the timing, positioning, placement, and frequency and manner of distribution of the Client Creatives. Client agrees that where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Network” or similar designation is specified in the applicable IO, the Client Creatives may appear at any point of placement and/or distribution that Aragon and/or its Publishers may determine, in their respective sole discretion.
Aragon may require Client, at Client’s expense, to provide substantiation of any advertising claims Client makes in any Client Creatives. Client’s failure to provide adequate substantiation shall constitute a material breach of this Agreement. Aragon also reserves the right to demand third-party verification for any claims made in any Client Creatives and to terminate this Agreement if such verification is not promptly provided or is unsatisfactory, in Aragon’s sole discretion.
Leads
In connection with leads and CPA-based Campaigns, Client shall pay Aragon for each valid lead/acquisition (“Valid Lead”) delivered, including, without limitation consumer information, inbound telephone calls and/or telephone call transfers. Any/all “approved website(s),” as applicable, shall be set forth in the applicable IO. A “Valid Lead” means an individual person that: (a) is not a computer-generated user, such as a robot, spider, computer script or other automated, artificial, or fraudulent method designed to appear like a live person; (b) has not provided stolen or unauthorized consumer credit card information; and (c) has submitted information that meets all of Client’s criteria as set forth in the applicable IO. Client shall be exclusively responsible for confirming that the information collected for any Valid Lead corresponds to the criteria in the applicable IO.
“Unaccepted Lead” means: (i) a lead that is not accepted by Client; or (ii) a lead that Client has not paid for on the terms set forth on the applicable IO; (iii) Leadpot that is (a) generated by a robot, computer scripts or other automated, artificial or fraudulent method; (b) generated using stolen or false credit cards; (c) associated with a subID manually created in bad faith to directly inflating payable commissions (“Fraudulent Lead”) ; or (iv) a lead that, as per Paragraph 5.5 of this Agreement, is determined not to be a Valid Lead (“Invalid Lead”). Client shall have no right in or to any such Unaccepted Lead (including telephone call-related data). Unaccepted Leads shall be Aragon’s “Confidential Information” (as that term is defined herein). Client shall not directly or indirectly: (1) transfer, use, export, display, disclose or share an Unaccepted Lead or the data contained therein to or with any third-party; or (ii) use an Unaccepted Lead or the data contained therein on Client’s own behalf in any manner not expressly authorized by Aragon. A violation of the foregoing by Client shall be a material breach of this Agreement and shall, without limitation, obligate Client to pay Aragon for the same and/or indemnify and defend Aragon for any/all claims related thereto.
Client acknowledges that there is an inherent risk in any Campaign that consumers will engage in misleading, dishonest and/or fraudulent activity, resulting in leads that are not Valid Leads. Aragon shall not be liable for misleading, dishonest or fraudulent activity of end-user consumers. Client shall pay Aragon the Fees due in full for all Services, even if fraud by end users is detected. Notwithstanding the foregoing, Client shall not be obligated to pay Aragon for any Invalid Lead. Subject to the terms set forth herein, Client shall not be liable for transactions that are the result of Aragon’s Affiliate fraud if timely disputed and properly verified via commercially reasonable and industry-standard documentation, as determined by Aragon in its commercially reasonable discretion.
Subject to relevant restrictions, upon Aragon’s delivery of a Valid Lead to Client (and Client’s payment to Aragon in accordance with the payment terms set forth herein and in the applicable IO), Aragon shall grant to Client joint ownership (exclusive to Client) or a license (non-exclusive to Client) to use such lead and the data contained therein. If a Valid Lead is: (a) exclusive to Client, then Aragon grants Client a non-exclusive license to use such Valid Lead and the data contained therein, and retains the right to use such Valid Lead and the data contained therein for its own purposes but shall not grant a license in such Valid Lead to another Client for the same vertical for a period of ninety (90) days; or (b) non-exclusive to Client, then Aragon grants Client a non-exclusive license to use such Valid Lead and the data contained therein.
Each Party acknowledges and agrees that, unless otherwise specified in an applicable IO, (a) any lead/acquisition acquired in connection with the Services may be used by Client for Client’s own marketing purposes. Client shall not re-sell, re-market, transfer, assign or disclose any Valid Lead; and (b) for the avoidance of doubt, Aragon shall have the right to use non-exclusive Valid Leads without limitation. Aragon may sell any non-exclusive lead or acquisition multiple times, to Aragon’s other customers, or otherwise distributed or used by Aragon.
Reporting and Tracking
Client shall provide Aragon with the following reports for the purposes of determining the number of Compensable Transactions (“Reports”).
a) Pay-per-call campaigns:
i. For pay-per-call campaigns, Client shall either provide Aragon with access to real-time reporting statistics. or daily Reports of gross Compensable Transactions for each tracking link or per designated telephone number.
ii. For sales-based telephone campaigns and other campaigns that cannot be tracked via link or designated telephone number, Client shall provide Aragon with daily Reports of gross Compensable Transactions. Client shall pay Aragon for all Compensable Transactions that are created during the Term of the Agreement and during the twelve (12) month period following expiration or termination of the Agreement. For the avoidance of doubt, Client shall pay Aragon for such Compensable Transactions even if they are created after the relevant Campaign or open enrollment period.
iii. For pay-per-call campaigns, Client shall provide the reports to Aragon on a daily basis during the entire Campaign plus a period of thirty (30) days after the expiration or termination of the Campaign.
iv. For pay per call Campaigns, Aragon shall track telephone calls that connect with the designated call center agent, or “raw inbound telephone calls” via a platform such as Everflow or Ringba. Client shall promptly take all steps necessary to facilitate and maintain call tracking via Aragon’s platform of choice during a Campaign.
b) Campaigns other than pay-per-call campaigns
i. For Campaigns other than pay-per-call campaigns, Client shall provide the Reports to Aragon on a daily basis for the Term of the Agreement and then on a weekly basis for a period of fourteen (14) months after expiration or termination of the Agreement.
ii. Aragon shall be responsible for tracking Compensable Transactions and related statistics generated for each Campaign. Client acknowledges that Aragon shall, for CPA and CPI Campaigns, have the right to place tracking code (typically a pixel or server postback URL) on Client’s website, mobile app, within Client’s Mobile Measurement Platform (“MMP”), or within Client’s other tracking solution for tracking and reporting purposes. In addition to the foregoing, Client agrees to allow Aragon to place an additional pixel(s) on Client’s home page to allow Aragon to better track consumer traffic and generate returns for Client. Notwithstanding the foregoing, unless Client provides Aragon with access to real-time reporting statistics, Client will either provide a daily report via email or make available a daily report that details information as tracked by Aragon’s tracking pixel located on Client’s website. Reports will reflect daily gross Compensable Transaction numbers for each tracking link as reported by Client.
iii. For Campaigns other than pay per call Campaigns, Aragon shall have the right to track all transactions through a third-party tracking platform of its choice, including but not limited to, 24 Metrics. Client shall promptly take all steps necessary to facilitate and maintain tracking via Aragon’s platform of choice during a Campaign, including but not limited to, allowing Aragon to place tracking code (such as a pixel) on Client’s website for purposes of tracking consumer traffic. Client shall not: i) alter or remove the pixel or other tracking method deployed by Aragon; or ii) alter the location of the pixel or other tracking method deployed by Aragon. If Client alters, removes, disables or moves the pixel thereby disrupting or disabling Aragon’s tracking system, Client will be obligated to pay for all estimated transactions generated during this period based upon the historical earnings over the previous thirty (30) days for the period in which such pixel was altered, disabled, displaced or removed. In addition, Client agrees to place the Aragon pixel on a unique confirmation page that does not contain the pixel or tracking method of any third-party.
iv. Except as set forth in an IO, for Campaigns other than pay per call Campaigns, Client shall pay Aragon based upon each firing of the Aragon pixel (based upon Aragon tracking logs) or other tracking technology used by Aragon. If Client permits another Party to place a pixel or other tracking technology on the same page that Aragon places its pixel or other tracking technology, Client shall not split or otherwise reduce the compensation due to Aragon for any Compensable Transactions, regardless of any payment made to any third-party for the subject action in reliance on any other pixel and/or tracking method appearing on the same page.
v. Aragon expressly reserves the right to seed applicable data in order to monitor Client’s compliance with the terms of this Agreement.
The Reports shall include commercially reasonable and verifiable data showing the Compensable Transactions as identified in the relevant IO, as amended by mutual agreement, if applicable. If Client fails to make the Reports available to Aragon on a daily basis, then Aragon’s count of Compensable Transactions shall control and be considered conclusively valid.
Client shall maintain copies of the Reports and the records on which the Reports are based during the Term of the Agreement and for a period of seven (7) years after Termination or Expiration of the Agreement.
Client shall provide Aragon with complete copies of any records and data within Client’s possession, custody or control relating to a Campaign upon Aragon’s request for the purpose of verifying the number of Compensable Transactions and/or performance of a Campaign within three (3) days of such request. Client’s failure to provide such records or data shall constitute a material breach of the Agreement.
Client shall notify Aragon in writing within five (5) days of the date that a transaction occurs that it does not believe that it is a valid Compensable Transaction (“Dispute Period”). If a claim is regarding Fraudulent Leads, Aragon only accepts chargebacks on the basis of subID. Client’s notice must include (1) an identification of the Lead(s) disputed by Client, (2) the Lead’s date, time stamp, subID, and IP address; (3) Lead data; (4) the reason(s) Client is asking for chargeback; and (5) commercially reasonable and verifiable documentation supporting such chargeback, including, but not limited to, name of the Campaign, click dates and times, cookie drop time stamp, conversion data and times, conversion Ips, screenshots (“Chargeback Notice”). If the Campaign is a CPI Campaign, the Chargeback Notice must also include click IDs, uninstall rates, and user actions after the installation. Aragon may, at its sole reasonable discretion, ask the Client to provide additional information. The Parties will make a good faith effort to resolve the dispute within thirty (30) days following the end of the applicable billing cycle, using generally accepted industry standards. Aragon shall have the right to determine, in its sole discretion, whether a disputed transaction is a Compensable Transaction. If Aragon agrees with Client that the transaction is not a Compensable Transaction, then no fee shall be due to Aragon for such transaction. If the parties are unable to arrive at a reconciliation, Aragon and Client expressly agree that Aragon’s tracking count shall be considered conclusively valid. If Client does not dispute a Lead during the Chargeback Period, such Lead shall be deemed valid and payable and Client shall forever waive any claims it may have in law or equity against Aragon or its publishers arising from any traffic delivered prior to the Dispute Period.
In cases where Compensable Transactions cannot be adequately tracked due to, without limitation, technical difficulties that cause Client’s website to crash, website performance to decrease or Aragon’s tracking pixel to stop accurately reporting actions (collectively, “Technical Issues”), Client shall compensate Aragon for the days for which the data cannot be supplied at a default rate equal to the average daily total Compensable Transactions for the seven (7) days prior to the Technical Issues for clicks/impressions, or the average conversion rate applied to the number of clicks delivered for the seven (7) days prior to the Technical Issues for conversions. Aragon acknowledges that Client may wish to separately track Compensable Transactions.
Compliance KPI: If conversion is based on app installation (“Install”), Client may pause sources having a CTI rate lower than 0.05%, provided, however, that Client shall pay for all Installs which were generated before such pausing. If an Install occurs less than 10 seconds after the associated click, such Install may be charged back. If at least 50% of the Installs do not occur within one hour of the click, Client may charge back the traffic. Client may not charge back any Leads based on one sole KPI metric. Client may change any KPI metrics by providing at least seven (7) business days prior written notice to Aragon.
Client Representations and Warranties
In addition to the representations and warranties set forth in Part I, Section 6, Client represents and warrants, as applicable, that:
It will immediately notify Aragon in writing of any change to its legal and/or business name or entity type;
The individual executing this Schedule and any IOs has the authority to legally bind Client;
It shall comply, and assist Aragon with complying with all applicable international, federal, state or local laws, rules, regulations, or trade organization and ordinances including, without limitation, the CAN-SPAM Act of 2003 (as amended), California Business & Professions Code § 17529, the Canadian Anti-Spam Legislation (as amended from time to time), the Federal Telemarketing Sales Rules (including, without limitation, the Telemarketing Sales Rule (16 C.F.R. Part 310), the Telephone Consumer Protection Act (47 U.S.C. 227), provisions relating to the National Do Not Call Registry (16. C.F.R. Part 310) and applicable state Do Not Call List requirements), the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.), the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Federal Trade Commission Act (as amended) and any/all Federal Trade Commission implementing regulations applicable to Client’s products/services and Client’s performance under this Agreement;
It will maintain a written policy for maintaining Do Not Call/suppression requests;
It will create and maintain entity-specific Do Not Call lists and ensure Do Not Call lists (in addition to revocation requests and re-assigned numbers) are provided to Aragon at least weekly;
It will use and maintain records documenting a process to prevent calls to any telephone number on an entity-specific Do Not Call list or the National DNC Registry (the latter process must involve using a version of the National Registry from the FTC);
It will scrub, in accordance with applicable Laws, but in any event, no less frequently than every thirty (30) days all leads and telephone numbers against the Federal Do Not Call Registry and all applicable state Do Not Call lists;
It will maintain or cause to be lawfully maintained digital recordings of all telephonic communications with consumers as required by applicable laws and ensure that the applicable call-tracking platform settings are enabled to permit Aragon to access to digital recordings. Client shall keep copies of call recordings for a period of no less than four (4) years. Client shall provide Aragon access to any requested call recordings within twenty-four (24) hours of Aragon’s request. Aragon shall have the right to audit Client’s compliance with the terms of this Agreement, including, but not necessarily limited to, accessing a random sampling of telephone calls, as needed for compliance and quality assurance purposes;
It will not violate the rights of any third-party including, without limitation, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary/intellectual property right;
It owns and/or has any and all rights, title, and interest in and to the Creative Materials, and to permit the use, reproduction and transmission of the Creative Materials by Aragon and its Affiliates as contemplated by the Agreement. The Creative Materials do not violate the rights of any third party including, without limitation, any copyright, patent, trademark, trade secret or other third-party proprietary rights and do not violate any applicable Laws;
Its products or services shall not target consumers under the age of eighteen (18);
Its website and/or Creative Materials shall not be, nor contain, any material that can be considered, defamatory, libelous, pornographic, obscene, hate-filled, or otherwise objectionable, that promotes gambling, tobacco, alcohol, or any illegal activity or that contains viruses, Trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines;
Neither Client, nor any portion of its website and/or Creative Materials, is the subject of any ongoing and undisclosed investigation by any local, state, federal or international regulatory or quasi-legislative regulatory authorities. Client shall promptly notify Aragon if it becomes the subject of a local, state, federal or international regulatory investigation or enforcement action, whether or not related to a Campaign;
For CPA Campaigns, the Creative Material and/or the landing page from where an action is completed (for example, the Client website page where a consumer is directed when the consumer clicks on the creative, fills in a registration form or takes a similar action), shall contain a prominent link to Client’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to consumers regarding Client’s use, collection and disclosure of their personal information, and Client shall comply with such privacy policy;
For Campaigns involving incentivized offers (e.g., offers where a consumer is provided something of value in exchange for either providing their personally identifiable information (“PII”) and/or agrees to receive a product or service on a “free trial” basis, Client shall ensure proper registration and prevent multiple submissions from the same consumer;
If Client has selected “email” as a promotion type, then Client represents, covenants and agrees as follows:
i. Client shall be solely responsible for creating and maintaining a suppression list with respect to Client and its affiliates. Client shall provide an updated suppression list to Aragon not less than once a week to ensure that offers are not emailed to persons that have unsubscribed or opted out from receiving such offers. If no such opt-out email addresses are supplied by Client, Aragon may conclude that no such addresses exist;
ii. Client has maintained, and shall continue to maintain, all suppression files secured with a reliable seeding protocol to ensure that all persons who have opted-out of receiving emails from Client and/or its affiliates are not emailed under the relevant IO. Client may choose to outsource suppression security to a third-party. Client shall provide Aragon with a prompt report of any suppression failures, including the date, email address(es), an offer associated with such mailing, promptly following Client obtaining knowledge that the mailing’s suppression security has been compromised;
iii. any and all Creative Materials, including, without limitation, email based Creative Materials supplied by Client shall comply with applicable Laws; and
iv. Client shall cause a valid physical postal address for Client to appear in all email based creative content, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after email delivery). Aragon shall have the right, but not the obligations to add such addresses should Client fail to include same. Aragon may use Client’s address appearing on the applicable IO, unless another valid address is acceptable to Aragon;
Prior to loading any computer program onto an individual’s computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are lawfully disclosed in Client’s privacy policy and end-users are instructed on how to disable such cookies), Client shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;
It shall fulfill all the commitments made in the Creative Materials; and
It shall implement such administrative, physical, and technical security measures as required by applicable laws, rules, regulations and ordinances as necessary, to ensure the secure handling, transmission, storage, and disposal of any “non-public personal information” which Client holds or handles.
Payment
Aragon will invoice Client monthly or as otherwise specified in an applicable IO. Each invoice will set forth the Fees due based on: (a) the number of Compensable Transactions generated in connection with each applicable Campaign as set forth in the Reports, multiplied by the Payout, plus any upward adjustment required by the Minimum Conversion Rate and any other terms in the applicable IO; (b) any other charges associated with each Campaign; and (c) less any refundable Pre-Payment amounts or other credits. Aragon’s failure to provide an invoice shall not operate as a waiver of its rights or relieve Client of any payment obligation.
Unless otherwise set forth in the applicable IO, Client shall provide Aragon at least two (2) business days’ prior written notice for any adjustments to budget, rate, or volume cap. All such adjustments must be memorialized in a written agreement executed by an authorized representative of each Party.
Client shall pay Aragon within thirty (30) days of the invoice date, unless otherwise agreed in an IO.
Client’s sole remedy for any claims or disputes that it may have with respect to any invoice or transaction is to submit a claims or dispute in writing to Aragon within ten (10) days following the applicable invoice issuance date. Any/all disputed claims must be supported by commercially reasonable, industry standard and properly verified documentation, as determined by Aragon in its commercially reasonable discretion. Client’s failure to timely dispute and/or substantiate its claims shall operate as an irrevocable waiver and such charge will be considered final and binding.
Term and Termination
This Schedule shall remain in effect from the Effective Date until terminated in accordance with this Section 8.
Either Party may terminate this Schedule immediately upon written notice to the other Party if there is no active Campaign or IO in effect.
If an active Campaign or IO is in effect, either Party may terminate this Schedule or an IO upon fourteen (14) days’ written notice to the other Party for any reason. Aragon has the right to pause or terminate a Campaign or IO for any reason, with or without notice to the Client, on a temporary or permanent basis.
Aragon shall have the right to terminate this Schedule immediately on written notice to Client if (a) Aragon does not receive payment for an invoice by the applicable due date; or (b) Client is in breach of any material provision of this Agreement Part I or an IO, and such breach is not cured within five (5) business days of Aragon’s notice to Client of such breach.
Either Party may terminate this Schedule and any IOs in effect upon written notice to the other Party if such Party ceases business operations, becomes insolvent, or is subject to any bankruptcy or other similar legal process or proceeding.
Upon expiration or termination of this Schedule for any reason: (a) Client shall be liable for payment of Fees for Services performed through the effective date of termination without deductions of any kind; (b) all IOs in effect will immediately terminate; (c) any and all licenses and rights granted to either Party in connection with the Agreement shall immediately cease and terminate; and (d) any and all “Confidential Information” or proprietary information of either Party that is in the other Party’s possession or control must, at the written request of the requesting Party, be immediately returned or destroyed. Termination of this Schedule and any IO will be in addition to and not in limitation of any other rights or remedies to which either Party is or may be entitled. If Aragon’s right to use any Client Materials is terminated for any reason, Aragon shall have the right to retain copies of such Client Materials for archival purposes and to satisfy Aragon’s obligations under applicable laws.
Recordkeeping; Right to Audit
Client shall maintain, during the term of this Schedule and for a period of seven (7) years following expiration or termination of this Schedule, or at least until the conclusion of any applicable statute of limitations under applicable law or regulation, whichever is longer, maintain true and correct records relating to, without limitation, compliance with the terms of the Agreement, the number of Compensable Transactions and any payments due Aragon derived therefrom. If records pertinent to Client’s compliance with the Agreement and/or relevant information, documentation or data is requested by a third-party, including, without limitation, a government entity or regulatory authority, Client shall, upon not less than five (5) days’ written notice, provide Aragon, the third-party, the government entity and/or the regulatory authority a true and correct copy of such records. Such prior written notice to Client shall identify the third party, government entity or regulatory authority to which such records must be delivered and the information that must be reported. Aragon or its agent shall be entitled to audit, at its expense, during regular business hours and upon not less than five (5) days’ written notice, records of all information pertinent to Client’s performance hereunder, including, without limitation, compliance with applicable Laws. Any such audit shall not be made more than twice per annum during the term of this Schedule, unless reasonably required. If, based on any such audit, Aragon determines that Aragon was underpaid by an amount equal to or greater than the lesser of $5,000 or five percent (5%) for the period under audit, or that there has been of any material term of this Agreement, then the reasonable out-of-pocket costs incurred by Aragon in connection with the review (including reasonable accountants’ and attorneys’ fees) shall be reimbursed by Client within five (5) days after demand therefor.
Non-Circumvention and Non-Solicitation
Client acknowledges that Aragon has valuable, proprietary relationships with its third-party Affiliates. Client shall not circumvent Aragon’s relationship with such Affiliates, or otherwise solicit, purchase, contract for or obtain services similar to the services performed by Aragon in connection with this Schedule from any third-party Affiliate that is known, or should reasonably be known, by Client to have such a relationship with Aragon, during the term of this Schedule and for one (1) year following termination or expiration of this Schedule. To the extent that Client can reasonably demonstrate that any such third-party Affiliate already provided such services to Client prior to the date of the first IO executed by Client under this Schedule, then Client’s continued relationship with such Affiliate shall not be a violation of this Section.
During the term of this Schedule and for one (1) year following termination or expiration of this Schedule, Client shall not solicit to hire or employ any employee, contractor, publisher, affiliate, marketer, mailer, agent, or vendor of Aragon without Aragon’s prior written approval, which may be withheld in Aragon’s discretion.
Client acknowledges that any breach or threatened breach of Section 10.1 or 10.2 would cause Aragon irreparable harm for which monetary damages alone would be an insufficient remedy. Accordingly, Aragon shall be entitled to seek injunctive relief, including temporary and preliminary relief, without the requirement to post a bond, to prevent any such breach or threatened breach. In addition, Client agrees to pay Aragon, as liquidated damages and not as a penalty, an amount equal to one hundred percent (100%) of the greater of: (a) the revenue Aragon would have earned but for the breach, or (b) the revenue wrongfully earned by Client as a result of the breach, based on the twelve (12) month period preceding the violation. The parties agree that such liquidated damages represent a reasonable estimate of the harm that would result from a breach. Aragon shall also be entitled to pursue any other remedies available at law or in equity.
SCHEDULE B — VIBRANT AFFILIATE MANAGEMENT TERMS
These Vibrant Affiliate Management Terms govern the affiliate management services provided by Aragon Advertising LLC, d/b/a Vibrant Performance (“Vibrant”), to Client. The terms of this Schedule B, together with any applicable SOW, IO and the General Terms in Part I, constitute the complete agreement between the Parties with respect to the Affiliate Management Services (the “Agreement”). Capitalized terms not defined herein have the meanings ascribed to them in Part I. This Schedule shall become effective as of the effective date of the applicable Statement of Work (“Effective Date“).
Definitions. For the purposes of this Agreement, the following terms set forth below shall have the following meanings.
“Affiliate” shall mean any individual website owners or business entities that promote Client campaigns, products and/or services through their online marketing inventory website, e-mail, marketing channels using banners, text-links, product data, and publisher links, and in return earn commissions for referring leads. The Parties agree that the term Affiliate is broadly defined, and they will work in good faith when seeking to include or exclude prospective Affiliate partners from this Agreement.
“Affiliate Websites” means Affiliate owned, operated, controlled, or associated websites and social media communications.
“Deliverables” means the installation, bank link, deposit, or other inventory as specified in the Program or otherwise by Client, that is a direct result of the Creative on the Affiliate Websites. All Deliverables must be by users physically located in the United States, including without limitation, digital devices with IP address locations in the United States.
“Invalid Actions” means fraudulent, duplicate, or other invalid Deliverables including without limitation: (a) a Deliverable that is a computer generated user, such as a robot, spider, computer script, or other automated, artificial, or fraudulent method designed to appear like an individual, live person; (b) an individual person that has submitted information that fails to meet all of the Client’s criteria; or (c) a Deliverable that reproduces all or substantially all of the uniquely identifying data that was either, previously submitted within the previous ninety (90) days to Client by Affiliate, and for which Client has paid, or accrued an obligation to pay Affiliate.
“Links” means graphical and textual links on the Affiliate Websites that link to the Client Properties.
“Mobile Partner” shall mean any mobile partner that provides mobile app marketing services to Client’s mobile app, including demand side platforms “DSPs”, real-time bidding, mobile in-app display, mobile in-app video.
Appointment. Client agrees to retain Vibrant as the exclusive provider of the Affiliate Management Services as more fully described in this Agreement (“Affiliate Management Services” or “Services”). Vibrant agrees to provide the Services and Client agrees to receive the Services pursuant to the terms of this Agreement. As exclusive provider of the Services, Vibrant will be the sole agent responsible for recruiting, managing, activating, and optimizing third-party Affiliate and Mobile Partner activity. Should Client require additional services from Vibrant, both Parties shall negotiate terms for those services in good faith and attach such terms as an addendum to this Agreement.
Scope of Services.
The specific Affiliate Management Services to be provided by Vibrant include:
Execute the project objective as defined and outlined in the SOW, attached as an addendum hereto.
Responsible for the Outsourced Program Management (“OPM”).
Onboarding new Affiliates and Mobile Partners subject to this Section 3.
*If Aragon Advertising LLC is onboarded as an Affiliate under this Agreement, Part I:General Terms and Schedule A: ADVERTISING SERVICES TERMS shall govern the advertising and marketing services provided by Aragon Advertising LLC to Client.
Recruitment and management of new Affiliates and Mobile Partners for Client’s Affiliate Program (“Program”).
Management of all existing Affiliate and Mobile Partner activity.
Work within Client’s affiliate tracking platform and mobile measurement platform.
Optimization of Affiliates and Mobile Partners to achieve Client’s Key Performance Indicators as communicated by Client to Vibrant (“KPIs”).
Undertaking other tasks and responsibilities as needed to manage Program end to end.
If directed by Client, develop and create the Creative (“Vibrant Creative”).
Post or otherwise use the Creative on Affiliate Websites once it receives prior written approval from Client’s Head of Growth or another designated representative of the Client, such approval to be determined in Client’s sole and absolute discretion.
Placement of Creative is at the sole discretion of Vibrant. There are no guarantees of performance by any Creative placed on Affiliate Websites.
Client Materials. Subject to the terms and conditions of this Agreement, Client hereby grants to Vibrant a non-exclusive, revocable, non-transferable, non-sublicensable, royalty-based (Client waives the license fee under this Agreement), limited right and license to use the Client Materials only for the development and creation of the Creative, and only for the Term (as defined below) of this Agreement, and for no other purpose or under any other condition whatsoever. Vibrant will not edit or otherwise modify the Client Materials, or any component thereof, without the prior written approval from Client’s Head of Marketing or another designated representative of the Client, such approval to be determined in Client’s sole and absolute discretion. Client shall own, as between the Parties, all rights in and to the Client Materials. Vibrant hereby agrees not to challenge the validity of Client’s ownership of the Client Materials or derivatives thereof. All rights in and to any Client Material not expressly granted in this Agreement are reserved to Client, and no additional licenses are granted or implied hereunder (including without limitation, no marketing or publicity rights to promote Vibrant’s business).
Affiliate Website Restrictions. Vibrant may not place any Creative on Affiliate Websites that contain, promote, reference or have links to: (a) profanity, sexually explicit material, hate material, material that promotes violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, age or family status, illegal activities or advice, or any other material deemed by Client to be unsuitable or harmful to Client’s reputation; (b) web pages with no content; (c) piracy (of software, videos, audio/music, books, video games, etc.), hacking/cracking/phreaking, content unlockers, emulators/ROMs, or violations of the IP or privacy rights of others; (d) intentionally deceptive acts or practices; (e) personal web pages, non-English language pages, free hosted pages or websites under construction; (f) charity clicks/donations, paid to surf, Active X downloads, all affiliate links or incentivized traffic where users have some sort of incentive to click on the Creative; or (g) activities generally understood as Internet abuse including without limitation, the sending of unsolicited bulk electronic mail or the use of spyware.
Out-of-Scope Work. The Client may, from time to time, request additional products or services from Vibrant, subject to Vibrant’s capacity to accommodate such requests. Any services not explicitly included in the Scope of Services set forth in Section 3.1 shall be considered out-of-scope (“Out-of-Scope Work”). The following are expressly identified as Out-of-Scope and are not included under this Agreement:
Tracking platform migration for any launched affiliate program or tracking platform implementation for any new affiliate program.
Affiliate management outside of tracking platform or on more than one tracking platform.
Addition of alternative tracking events within platform.
Trade show representation when Vibrant isn’t already planning to attend.
Creation of full-length email or article copy for affiliate use.
Creation or major edits to any static (banners/ads) or dynamic (video) ads.
Any additional products or services that are assigned to Vibrant and accepted by Vibrant but not listed in Section 3.1.
Out-of-Scope Work shall require a separate Insertion Order (“IO”) or a written amendment to this Agreement. Additional fees may apply, as set forth in Section 4.2. Unless otherwise agreed in writing, all terms and conditions of this Agreement shall continue to apply to any approved Out-of-Scope Work.
Pricing, Billing and Payment.
Affiliate Management Services
Client shall compensate Vibrant for the Services in accordance with the terms set forth in the applicable SOW.
Media purchased shall be tracked in the affiliate tracking platform or mobile measurement platform licensed by Client and managed by Vibrant.
Client is solely responsible for payment to any Affiliate or Mobile Partner. Vibrant may at its own discretion serve as a conduit for monies owed to third parties.
Vibrant may purchase media directly from third parties given written permission is provided by Client. Any invoices sent to Client for media purchased by Vibrant from third parties will be paid by Client within 7 days of receipt.
Where applicable, Client will pay Vibrant a media fee of 15% for any non-CPA placements.
Rate or billing adjustments shall be credited or charged to Client on the first billing date after Vibrant has been invoiced or as soon thereafter as otherwise practical.
Fee invoices will be issued to Client on the 10th of each month, or the nearest working day.
Invoices shall be submitted to Client in an itemized format.
Client shall not be obligated to pay fees for Invalid Actions. Client shall send a notice to Vibrant identifying the Deliverables that it is disputing. The Parties shall use reasonable efforts to resolve disputed Deliverables, including without limitation, use of records from third-party tracking and analytics companies used by Client.
Out-of-Scope Work
Any Out-of-Scope Work shall be billed at an hourly rate of $180, plus any pre-approved expenses incurred in connection with the performance of the services, or at such other rate as mutually agreed upon and set forth in an applicable IO.
While the Parties may mutually agree on an estimated number of hours for such work, all fees will be invoiced based on actual hours worked. Any estimates provided are for reference purposes only and shall not constitute a cap or guarantee of the total fees.
Invoices shall be issued on a weekly, bi-weekly or monthly basis, as specified in the applicable SOW, detailing the hours worked and services performed, and any reimbursable expenses incurred.
General Provisions
Client shall pay Vibrant within seven (7) days from the issuance of an applicable invoice, or as otherwise agreed by the parties in an IO.
Client agrees to reimburse Vibrant for reasonable actual travel expenses in connection with this Agreement provided only if they are pre-approved in writing by a duly authorized representative of Client and evidenced with receipts.
If Client disputes any portion of an invoice, Client must notify Vibrant in writing within 5 days of receipt. Undisputed portions shall be paid in accordance with the terms above.
Affiliate Advertising Software Access. Vibrant will be granted access to the affiliate advertising software to monitor marketing partner performance statistics, manage the day to day of Program, and verify statistics for its own billing purposes. If access cannot be provided, then Vibrant will employ its own affiliate advertising software to manage and track activity for all marketing partners at no extra charge to Client.
Term.
The duration of the Services shall be set forth in the applicable SOW.
Upon expiration of the Services, the following shall immediately occur:
the license to the Client Materials shall immediately terminate and revert to Client;
Vibrant shall immediately cease from using all Client Materials and shall deactivate the Links;
Vibrant shall return all copies of the Client Materials to Client; and
each Party shall immediately cease using, promptly return, and purge its files of all material and any Confidential Information (defined below) received from the other Party.
All terms and conditions of this Agreement that, by their sense and content, are intended to survive the expiration or termination of this Agreement, shall survive, regardless of the reason of such expiration or termination.
Non-Solicitation. During the term of this Agreement and for one (1) year thereafter, Client shall not directly or indirectly, solicit, induce, recruit, or encourage any of Vibrant’s employees, contractors, or agents, including, but not limited to, to whom Client has been introduced to or otherwise has had contact with as a result of the transaction contemplated in this Agreement, to terminate their employment or contractual relationship with Vibrant or to perform services for any other business. For purposes of this Section, “soliciting” shall include, but is not limited to, direct and indirect solicitations made through social-networking platforms, whether or not in existence at the time of entering into this Agreement, provided, however, that the foregoing shall not preclude Client from (a) making good faith generalized solicitations for employees, contractors, and agents through advertisements or search firms and hiring any persons through such solicitations and such searches that are not targeted or focused on Vibrant’s employees, contractors, or agents, (b) responding to or hiring any employee, contractor, or agent of Vibrant who contacts Client at their own initiative without any prior encouragement or solicitation (other than as permitted above) and (c) soliciting and working with Affiliates after expiration or termination of the Term. For the sake of clarity, nothing in the foregoing restricts Client from soliciting Affiliates after expiration of the Term and from engaging in business with Affiliates after expiration of the Term. Client acknowledges and agrees that in the event of any breach of this non-solicitation provision, Vibrant may seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond. Vibrant also reserves the right to seek monetary damages all amounts equal to the greater of what Vibrant would otherwise have earned, or equal to the amounts that Client has wrongfully earned, had this section not been violated.
Ownership of Materials and Intellectual Property.
As between Client and Vibrant, any Vibrant Creative prepared by Vibrant and accepted and paid for by Client for use in advertising hereunder shall become Client’s exclusive property, subject to the limitations set forth herein. Such Vibrant Creative shall be considered a “works made for hire” under United States copyright laws and shall become the exclusive property of Client. In the event any such Vibrant Creative does not fall within the specifically enumerated works that constitute “works made for hire” under United States copyright laws, Vibrant hereby unconditionally and irrevocably assigns all right, title and interest, now known and hereinafter invented, throughout the universe in perpetuity, in and to such Vibrant Creative to Client, including without limitation, all IP rights therein.
Notwithstanding the foregoing, Client’s ownership and use of any Vibrant Creative shall be subject to the following restrictions:
(a) Purpose Limitation. Client’s right to use any Vibrant Creative shall be limited to the specific Campaign identified in the applicable IO or SOW under which such Vibrant Creative was developed. Client shall not repurpose, adapt, or use such Vibrant Creative in connection with any other campaign, engagement, or purpose without Vibrant’s prior written consent.
(b) Restriction on Transfer. Client shall not assign, transfer, sublicense, or otherwise make available any Vibrant Creative to any third party, including but not limited to competing agencies, vendors, or platforms, without Vibrant’s prior written consent. Any unauthorized transfer shall be deemed a material breach of this Agreement.
(c) Retention of Underlying Work Product. Notwithstanding any assignment of ownership in the final deliverable, Vibrant retains all right, title, and interest in and to any underlying methodologies, creative frameworks, templates, strategic concepts, and proprietary tools developed or utilized in connection with the creation of any Vibrant Creative. Client receives only a license to use the final deliverable as expressly permitted herein.
(d) Restriction on Circumvention. Client agrees not to use any Vibrant Creative, or any derivative thereof, in a manner intended to replicate, substitute, or circumvent the Services provided by Vibrant under this Agreement, whether directly or through a third party.Upon termination of this Agreement, Client agrees that any advertising, merchandising, packaging and similar plans and ideas prepared by Vibrant and submitted to Client (excluding any Client Materials) but not used by Client, shall remain Vibrant’s property unless it was either mutually agreed in writing that any such plan or idea became Clients property, or specific payment of the cost of its development was agreed upon and made by Client. Excluding Client Materials, Client agrees to return to Vibrant any unused copy, artwork, plates, or other physical embodiment relating to any such unused ideas or plans, which may be in Client’s possession upon termination of this Agreement.
The Client shall grant Vibrant a non-exclusive, limited, royalty-free, worldwide license to use and display Client’s name, logo and trademarks, and any other content in connection with an IO or SOW, in the form and manner specifically described in the applicable IO or SOW for all purposes relating to this Agreement (the “Client Intellectual Property) and warrants that it is fully entitled to grant Vibrant these rights and that such content is free of racist, defamatory, obscene and other legally restricted material.
Client shall remain the sole and exclusive owner of all right, title, and interest in and to all Client Materials and Client Intellectual Property, including any and all trade secrets, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests, or protections, however arising, pursuant to the laws of any jurisdiction throughout the world therein. This shall include all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.
Representations and Warranties
Vibrant hereby represents, warrants and covenants to Client:
it holds the required IP rights and/or licenses to permit the use, posting, reproduction, distribution, and transmission of the Vibrant Creative and to provide the Services;
the Services and the Vibrant Creative do not infringe, violate, or misappropriate any IP of any third-party;
the Services and Vibrant Creative are not targeted at individuals under eighteen (18) years of age, and does not offer products or services that are illegal for minors to buy, possess or use;
it will not provide any information to Client, including Services and Deliverables, which were procured through fraud, identity theft, or any other illegal or illicit means, or in a manner not in compliance with the Applicable Laws, and it will maintain all documents and records necessary to demonstrate compliance which will be promptly provided upon Client’s request;
it will not load any computer program onto a user’s computer, in connection with a campaign, without Client’s prior written approval and the user’s express consent after receiving clear and conspicuous notice about the nature of the application to be downloaded, such as in the case of Deliverables sold on a CPI basis;
its Services will be of a professional quality conforming to generally accepted industry standards and practices; and
it shall comply, and shall cause its marketing agents, Affiliates and third parties acting on its behalf to comply with the Applicable Laws and the terms and conditions of this Agreement.
Client shall be responsible for and notify Vibrant of all and any applicable rules, regulations, codes of practice and laws relating to marketing or advertising of the Client Materials or the Client’s goods/services.
