LeadVision – Creative Marketing Solutions

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Terms and conditions

Affiliate Agreement

The LeadVision Publisher Terms and Conditions (“Agreement”) is made and entered by and between LeadVision, LLC a Delaware limited liability company (“Company”) and YOU (“Vendor”) (collectively, the “Parties” and individually a “Party”) as of the date of submission of this form. (“Effective Date”). This Agreement and any Insertion Orders executed between the Parties will govern the relationship between Company and Vendor. In consideration of the terms, conditions, and payments hereinafter set forth, the Parties agree as follows:
Definitions:
“California Consumer Privacy Act of 2018” or “CCPA” means the California Consumer Privacy Act  of 2018, as amended from time to time (Cal. Civ. Code §§ 1798.100 to 1798.199). 
“Company Data” means information and data, including Personal Information and information and  data regarding dealers, customers, and potential customers of Company or its dealers, (i) acquired  from or provided by the Company, Company’s dealers and/or affiliates of Company; or (ii) acquired by  Vendor in the course of Vendor’s performance of the services for the Company and/or Company’s 
dealers.  
“Dealer” means any dealer of Company who utilizes the Services of Vendor. 
“Personal Information” means information that identifies, relates to, describes, is capable of  being associated with, or could reasonably be linked, directly or indirectly, with a particular  consumer or household. 
“Qualified Lead” means a lead derived from traffic delivered to Company by Vendor that includes a full name, current full street address, city, state, and postal code, and valid phone number.

Vendor’s Scope of Services to Company
1.1	Vendor agrees to perform for the Company, the services set forth in this Agreement and any applicable Insertion Order. The services provided in exchange for the amount determined in the attached Insertion Order or site listing. 
1.2	Vendor shall deliver to Company Qualified Actions in the manner and according to the timeframes set forth on the Insertion Order (“Insertion Order”) attached to this Agreement. Qualified Actions means Qualified Leads that are delivered to Company by Vendor.
1.3	Company reserves the right to reject Qualified Actions in its sole discretion, including but not limited to the following reasons:  (i) generated by conveying any reason for consumers to expect eligibility or entitlement to a prize, gift, payment, or pecuniary of any kind; (ii) generated through “spyware” and/or fraud rings; (iii) generated through inappropriate search engine methods, including, but not limited to, SPAM, cloaking, link farms, and hidden text. If a Qualified Action(s) shall be determined to be rejected, Company shall scrub the total payable amount for each Qualified Action on the next invoice.
1.4	Company shall remain the owner of all Lead Data delivered to Company. Company shall retain the exclusive right to retarget, remarket or otherwise redistribute the lead data.
1.5	Vendor acknowledges that Company may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms,  contains obscene language, or falls within another category stated on the IO (“Editorial  Adjacency Guidelines”). Vendor will use commercially reasonable efforts to comply  with the Editorial Adjacency Guidelines with respect to Ads that appear on Vendor  Properties, although Vendor will at all times retain editorial control over the Media  Company Properties. Should Ads appear in violation of the  Editorial Adjacency Guidelines, Company's sole and exclusive remedy is to request in writing  that Vendor remove the Ads and not bill Company for such Ads.  After Company  notifies Vendor that specific Ads are in violation of the Editorial Adjacency Guidelines,  Vendor will make commercially reasonable efforts to correct such violation within 24  hours. Vendor will make commercially reasonable efforts to ensure that  Ads are not placed adjacent to content that violates the Site’s terms of use. 
1.6	Any and all ads, placements, and traffic sources must be approved by Company prior to launch. Company shall not be liable to pay for any Qualified Actions generated through unapproved means.

Compliance with Laws
2.1	When performing their obligations under this Agreement, Vendor shall comply with all applicable laws, regulations, and orders, including, but not limited to, the Telephone Consumer Protection Act (“TCPA”), the CAN-SPAM Act, the Do Not Call Implementation Act, the Federal Trade Commission Act, and the Telemarketing and Consumer Fraud and Abuse Prevention Act.
2.2	Vendor shall comply with all applicable Legal Requirements (as defined below) in the  performance of this Agreement, including, but not limited to the Telephone Consumer Protection  Act of 1991 ("TCPA"), 47 U.S.C. § 227, and the implementing regulations adopted by the Federal  Communications Commission (the "FCC"), 47 C.F.R. § 64.1200, and an act to promote the  efficiency and adaptability of the Canadian economy by regulating certain activities that  discourage reliance on electronic means of carrying out commercial activities, and to amend the  Canadian radio-television and telecommunications commission act, the competition act, the  personal information protection and electronic documents act and the telecommunications act  (“Canada’s Anti-Spam Legislation” or “CASL”), and the implementing regulations adopted by the  Canadian Radio-Television and Telecommunications Commission (the "CRTC"), S.C. 2010, c. 23,  as well as all applicable data privacy, data protection, and cybersecurity laws, rules and  regulations to which the Personal Information of Company’s and/or Dealer’s customers and  prospective customers are subject, including without limitation, the CCPA, the CMR, the laws and  regulations of Canada and the United States of America weather national, provincial, state and/or  local and, to the extent applicable, the data protection or privacy laws of any other country  (collectively, "Legal Requirements").
	
2.3	Vendor shall notify the Company without undue delay, which  shall under any circumstances not exceed twenty-four (24) hours of becoming aware of the  accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Company Data, including Personal Information, transmitted, stored, or otherwise processed by Vendor, or  its service providers, of which Vendor becomes aware (a “Security Incident”). Vendor shall keep  the Company informed of all material developments in connection with the Security Incident and  cooperate with the Company and Dealers, as applicable, and shall take such reasonable and  necessary steps as are directed by the Company, and/or any affected Dealer, to assist in the  investigation, mitigation and remediation of each Security Incident. 
Payment Terms
3.1	Company shall pay to Vendor the cost per Qualified Action (“CPA”) set forth on the listing. Company shall determine what is a Qualified Action in its sole discretion including but not limited to traffic it believes is generated through fraudulent methods or contains invalid data. Company shall send Vendor a report for all valid leads received less returns for each billing period. Vendor shall submit an electronic invoice to Company within the first ten (10) calendar days of each calendar month for the total billable amount of the services provided by Vendor. The billable amount for each calendar month shall be determined by Company’s reporting. 
Term and Termination
4.1	Company may terminate this Agreement with two (2) days prior written notice to Vendor; this termination shall take effect at the end of the calendar month that Company requested to Terminate. Company shall make its best efforts to maintain the partnership with Vendor.
Confidentiality
5.1	Except as otherwise set forth herein, neither Party shall disclose to any individual or entity, and  each Party shall keep strictly confidential, all Confidential Information of the other Party,  protecting the confidentiality thereof with at least the same level of efforts that it employs to  protect the confidentiality of its own proprietary and confidential information of like importance  to it and, in any event, by reasonable means. “Confidential Information” includes non-public and  confidential information from or about the other Party, its affiliates, Dealers or customers,  including but not limited to technical information (e.g., drawings, prototypes, models, product  samples, specifications, and data), financial information, methods of doing business, business  plans and models, pricing and cost information, contract terms and conditions, marketing  methods and strategies, names of suppliers, customers, creditors or partners, proposed  transactions, market projections, names and compensation of employees and consultants,  software programs, analytical information, business ventures, product information, proposed  press releases, and other non-public confidential and proprietary information. Each Party may,  however, disclose the Confidential Information of the other to those of its employees, principals, officers, independent contractors, subcontractors, agents, advisors engaged in a use permitted by this Agreement and with a need to know, provided that such persons: (a) are directed to treat  such Confidential Information confidentially and not to use such Confidential Information other than as permitted hereby and (b) are subject to a legal duty to maintain the confidentiality  thereof. Neither Party shall use the Confidential Information of the other Party except solely as  necessary in and during the performance of this Agreement, or as expressly licensed hereunder.  Each Party shall be responsible for any improper use or disclosure of any Confidential Information  of the other by such Party’s employees, principals, officers, independent contractors, agents,  advisors and affiliates. 
5.2	Notwithstanding the foregoing, the receiving Party may disclose the disclosing Party's  Confidential Information solely to the extent that the receiving Party is required by any applicable  law or by any court or governmental authority to do so; provided, however, that in such event,  to the extent permitted by applicable law, the receiving Party promptly notifies the disclosing  Party and cooperates with the disclosing Party in any attempt to contest or limit such required  disclosure, at the disclosing Party’s expense. 
5.3	Return or Deletion of Company Data. Upon expiration or other termination of this Agreement,  Vendor shall either delete, destroy, or return all the Company Confidential Information to the Company and securely destroy or return any existing copies. Vendor may not retain de-identified and/or  aggregated form of the Company Confidential Information. 
Licensing
6.1	Vendor represents and warrants to Company it has obtained and will maintain all licenses it will use to perform any Service(s) under the Agreement. Vendor further represents and warrants to Company it has the ability to grant any sublicenses to Company and/or Dealer needed to  perform any Services hereunder. As further set forth in the Indemnification Section, Vendor will  defend at its own expense any claim or action brought against Company based upon an allegation that Vendor’s use of any software to provide Services hereunder infringe a patent, copyright, or other proprietary right of a third party. 
     
Indemnification
7.1	Vendor shall, at its own cost, defend, indemnify and hold harmless the Company,  Dealers, and each of their affiliated entities, and their respective officers, directors, equity  holders, employees, and agents from and against any demand, or any civil, criminal,  administrative, or investigative claim, action, or proceeding (including arbitration) asserted, commenced or threatened against Company (a “Claim”) regardless of the merit of such Claim and  any resulting liability, loss, damage or expense, including reasonable attorneys’ fees, arising out of or related to Vendor’s violation of Applicable Law, a breach of this Agreement, or any negligent or willful act or omission in its performance of this Agreement. 
Warranties
8.1	Vendor represents, warrants, and covenants to Company that it will comply with all material terms of this Agreement, which include but are not limited to Confidentiality, Indemnification, Licensing, Legal Requirements, and maintaining  required insurance. The warranty should have no limitations/caps on liability for violation of law, IP infringement, confidentiality,  negligence, misconduct, etc.  
8.2	Each Party represents, warrants, and covenants to the  other Party that (i) it has all necessary rights and authority to enter into this Agreement and to  grant the rights and licenses, if any, hereunder; and (ii) the execution or electronic acceptance of  this Agreement and the performance of its obligations hereunder do not and will not violate any  agreement to which such Party is a party or by which it is otherwise bound, and (iii) its  performance hereunder will comply with all applicable federal, state and local laws and regulations.
8.3	Except as expressly set forth in this agreement, Company does not make any other warranty, express or implied, including without limitation any implied warranties of merchantability and/or fitness for a particular purpose. Except with respect to Company’s indemnification obligations, Company’s total and cumulative liability for direct damages arising out of and/or in connection with this Agreement and any Insertion Order will in no event exceed the per lead fee(s) paid by Company to Vendor under the applicable Insertion Order in the 30 (thirty) days preceeding the claim. In no event will Company be liable for any indirect, incidental, consequential, special and/or punitive damages (including without limitation lost profits) even if it has been advised of the possibility of such damages.

Vendor’s Insurance Obligations
9.1	Without limiting Vendor’s obligations provided herein and as a material condition of  this Agreement, Vendor shall obtain, pay for, and maintain in full force and effect during the  term of this Agreement and for a period of 2 years thereafter, insurance with limits, coverages,  terms, and conditions including but not limited to: (i) commercial general liability insurance with  limits not less than $5,000,000 combined single limit per occurrence, as well as the claims for which Vendor would be  required to defend and indemnify pursuant to the terms of this Agreement; and (ii) professional  liability insurance with limits not less than $5,000,000 annual aggregate for all claims each policy  year. Vendor shall name the Company and any applicable affiliates as additional insured on all such  policies. Vendor shall include a blanket waiver of subrogation in favor of Company, its subsidiaries, and affiliates. Vendor’s insurance carrier shall have an AM Best’s Rating of at least A-VII.  Vendor shall provide Company with at least thirty (30) days prior written notice of cancellation or  material change in any of its applicable policies. 
Governing Law
10.1	This Agreement shall be interpreted and construed in accordance with  the laws of the state of California, without reference to its principles of conflicts of law. Any  arbitration shall occur, and any litigation shall be filed exclusively in the Federal or State Courts located, in Mecklenburg County, North Carolina. 
Force Majeure
11.1	A Party shall be excused from performing its obligations under this Agreement if it is prevented or delayed in such performance by conditions beyond the reasonable control and without the fault or negligence of such Party (“Force Majeure”), such as acts of God, acts of terrorism, acts of the public enemy, authority of law, fire or explosion, war or warlike act, insurrection, or a Party’s reasonable response (by way of example and not limitation, such as taking evasive action or canceling meetings or events) to a governmental warning affecting local or national security, provided such Party is otherwise in compliance with its obligations under this Agreement. 
11.2	A Party wishing to take advantage of the relief provided in this Section must, as soon as practicable, advise the other Party in writing of the existence of the Force Majeure condition and the estimated time of its duration, and shall further use its best efforts to remedy the non-performance.
11.3	If a Force Majeure condition continues for more than fifteen (15) days, the unaffected Party shall have the right to terminate this Agreement immediately upon oral or written notice.
Modification and Waiver
12.1	The terms of this Agreement cannot be modified or waived except in writing, signed by an authorized representative of the Party to be charged therewith.  The parties may amend 
12.2	Waiver by a Party of a breach of any term or condition of this Agreement shall not be construed as a waiver of any other term or condition or a future waiver of the waived term or condition.  The acceptance of any certificate or certification purporting to evidence compliance with requirements of this Agreement does not constitute a waiver, release, or modification of any of such requirements.
Severability
13.1	Any provision of this Agreement whichis determined to be invalid or unenforceable will be ineffective to the extent of such determination without invalidating the remaining provisions of this Agreement.
Assignment, Successors, and Assigns
14.1	Neither Party may assign this Agreement or its obligations hereunder, by operation of law or otherwise, without the prior written consent of the other Party, which consent may not be unreasonably withheld; provided that Company may assign its rights under this Agreement to any parent, affiliate, or subsidiary without the consent of Vendor.  
14.2	Any assignment in violation of this Agreement shall be void; provided however that this Agreement shall be binding upon and inure to the benefit of Company, Vendor, and their respective permitted successors and assigns.
Interpretation of Agreement
15.1	Section and paragraph titles used in this Agreement are for convenience only and are not a part of the text hereof. 
15.2	This Agreement shall not be more strictly construed against any Party, it being mutually agreed that all Parties have participated in the preparation and negotiation of this Agreement.  
15.3	The words “include,” “includes” and “including” when used in this Agreement will be interpreted as if they were followed by the words “without limitation.”  A reference to specific items as included within a general clause shall not serve to limit the general clause.
Entire Agreement
16.1	This Agreement, inclusive of any Insertion Order and site listing, which is incorporated in this Agreement by this reference and forms a part hereof, constitutes the complete agreement of the Parties relating to the matters specified in this Agreement and supersedes all prior and/or subsequent representations or agreements with respect to such matters. 
16.2	If Company is required to accept terms and conditions on Vendor’s website, mobile app, or any other agreement. The Parties recognize that such terms are merely a technical requirement and shall be of no binding effect and shall not modify this Agreement or the Parties’ relationship.

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