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Agreement For Customer Advertising Lead Data Information and Authorization For Credit Card Charges
This AGREEMENT is a contract between you the ADVERTISER and our business, the seller. By electing to participate in this offer, you are entering into a contract. If you do not agree with the terms and conditions SET FORTH HEREIN, you have the option to not participate in this offer. YOU, THE ADVERTISER, BY PLACING YOUR ORDER THROUGH OUR COMPANY WEB SITE, AUTHORIZE THE SELLER TO CHARGE YOUR CREDIT CARD FOR YOUR ADVERTISING LEAD dATA InFORMATION ORDER AND ACKNOWLEDGE YOUR UNDERSTANDING & AGREEMENT THAT NO REFUNDS ARE GIVEN FOR ADVERTISING ORDERS. BY ACCESSING THIS SITE, YOU ARE INDICATING YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THE TERMS AS SET FORTH IN THIS AGREEMENT. THESE TERMS ARE SUBJECT TO CHANGE BY OUR COMPANY AT ANY TIME IN ITS DISCRETION. YOUR USE OF THIS SITE AFTER SUCH CHANGES ARE IMPLEMENTED CONSTITUTES YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THE CHANGES. PLEASE CONSULT THESE PAA TERMS PRIOR TO EVERY USE FOR ANY CHANGES. Access To This Site YOU MUST BE EIGHTEEN (18) YEARS OR OLDER TO ACCESS THIS WEB SITE. IF YOU ARE UNDER EIGHTEEN YEARS OF AGE, YOU ARE NOT PERMITTED TO ACCESS THIS WEB SITE FOR ANY REASON. DUE TO THE AGE RESTRICTIONS FOR USE OF THIS WEB SITE, NO INFORMATION OBTAINED BY THIS WEB SITE, FALLS WITHIN THE CHILDREN'S ONLINE PRIVACY PROTECTION ACT (COPPA) AND IS NOT MONITORED AS DOING SO.
This Agreement (“Agreement”) For Customer Advertising Lead Data Information (“Leads”) is intended to set forth the general terms and conditions pursuant to which our company, Xodo Inc., the Seller (hereinafter referred to as “Company“) agrees to provide certain advertising lead data information, for your business advertising, (hereinafter referred to as the “Advertiser”), for Advertiser’s promotional advertising activities.
Company offers to provide the Leads Services, subject to the terms and conditions set forth herein. By ordering through this Company Web site, you, the Advertiser, agree to accept the terms of this Agreement.
COMPANY PRODUCT OFFER
Company has developed and intends to market and sell Leads to Advertisers.
Company seeks to provide Leads for experienced Advertisers who will provide advertisements and promotions for said Leads.
TERMS OF SERVICE AGREEMENT
1. GRANT OF PROMOTIONAL RIGHTS
Company agrees to provide to Advertiser Leads, for advertising and promotion of Advertiser products and/or services. Said Leads shall contain the following information:
A. First name, last name, full postal address, email address, date of subscription, and the IP address from which subscribed. B. Said Leads do not contain telephone numbers.
2. TERM
A. This Agreement and the provisions hereof, except as otherwise provided, shall be in full force and effect commencing on the date Advertiser first places an order with Company (the “Commencement Date”).
B. Advertiser shall have the option to renew this Agreement for additional leads at the current price rate and quantity in effect at the time of sale. During any such renewal term, all terms and conditions of this Agreement will remain in full force and effect.
3. COMPENSATION
A. In consideration for Company’s performance under this Agreement, Advertiser agrees to pay Company at the current price rate and quantity in effect at the time of sale.
B. Company will have not have any right to any percentage of Advertiser’s sales, monies or profits from the Advertiser’s marketing to Company Leads.
C. All payments due Company shall be made in U.S. funds.
4. IMPLEMENTATION
A. Advertiser acknowledges that “time is of the essence” in the marketing to said Leads.
B. Advertiser will not market to said Leads using Company’s name or information, in any form.
C. Advertiser can promote to Leads by postal address or email. In the event Advertiser contacts Leads by email, Advertiser acknowledges that Company cannot guarantee that email contact will not result in a spam complaint by Leads and Advertiser accepts such risk. Advertiser recognizes that even legitimate opt-in email contact may result in spam complaints as Leads may forget that they subscribed to receive such emails.
5. USAGE INFORMATION
It is understood and agreed that Company will not be required to deliver to Advertiser any user data in violation of its then-existing policies regarding the protection of user information, including but not limited to Company Web site privacy policies.
6. EXCLUSIVITY AND OTHER RIGHTS – NO BROKERING RIGHTS
Nothing in this Agreement shall be construed to permit Advertiser to sell, broker, give, or share in any manner, purchased company leads to others. Leads are for Advertiser’s own use only. Advertiser shall have the right to market to said leads without time or frequency restrictions, subject to current U.S. law, including THE CAN-SPAM ACT and opt-out notifications. If Advertiser desires to allow anyone other than Advertiser to use said Leads, a Brokering License Agreement must be obtained from Company prior to doing so.
7. WARRANTIES AND INDEMNIFICATIONS
Advertiser agrees to defend, indemnify, and hold the other party, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third Parties against such party based on the operation of the Advertiser or the violation of third-party intellectual property rights by any materials provided by Advertiser or of any breach of any representation and warranty made in this Agreement.
Indemnification
A. Indemnification by the Advertiser. The Advertiser shall indemnify and hold Company harmless from and against any Losses that Company may suffer, incur or be subjected to by reason of any legal action, proceeding, arbitration or other claim by a third party, whether commenced or threatened, arising out of or as a result of (a) the use of the Advertiser Marks by Company in accordance with this Agreement; (b) any content provided by the Advertiser to Company for display on the Company Site; (c) the operation of the Advertiser Sites; or (e) the offer or sale of any Products by the Advertiser or through the Advertiser Sites.
8. INTELLECTUAL PROPERTY RIGHTS
The Parties acknowledge and agree that (i) each party’s Marks are and shall remain the sole property of that party; (ii) nothing in the Agreement shall convey to either party any right of ownership in the other party’s Marks; (iii) neither party shall now or in the future contest the validity of the other party’s Marks; and (iv) neither party shall in any manner take any action that would impair the value of, or goodwill associated with, such Marks. The Parties acknowledge and agree that all use of the other party’s Marks by a party shall inure to the benefit of the party whose Marks are being used.
9. TERMINATION
The following termination rights are in addition to the termination rights that may be provided elsewhere in this Agreement:
Company Right to Terminate. Company shall have the right to terminate this Agreement at any time upon written notice to Advertiser for any reason.
10. DISCLAIMERS, LIMITATIONS AND RESERVATIONS
A. EXCEPT AS SET FORTH IN THIS AGREEMENT, COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES PROVIDED THEREUNDER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, AND NOT BY WAY OF LIMITATION, THE COMPANY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (A) THE AMOUNT OF SALES REVENUE THAT ADVERTISER MAY GENERATE WITH SAID LEADS, AND (B) AS WELL AS ANY ECONOMIC OR OTHER BENEFIT THAT THE ADVERTISER MIGHT OBTAIN THROUGH THEIR PARTICIPATION IN THIS AGREEMENT.
B. IN NO EVENT SHALL COMPANY BE LIABLE TO THE ADVERTISER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OR RESULTING FROM THE AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF COMPANY AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT OR ANY OTHER THEORY OF LIABILITY. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL COMPANY BE LIABLE TO THE ADVERTISER FOR THE GREATER OF (i) THE CUMULATIVE AMOUNT ACTUALLY PAID TO THE COMPANY.
C. Company shall remain solely responsible for the operation of the Company services, products and/or Web Site, and Advertiser will remain solely responsible for the operation of the Advertiser’s promotions and advertising using said Leads. Advertiser acknowledges that the Company’s Web Site may be subject to temporary shutdowns due to causes beyond the Company’s reasonable control. Furthermore, subject to the specific terms of this Agreement, Company retains sole right and control over the programming, content and conduct of transactions over its respective site.
D: No income guarantees or promises of any type are being made. Advertiser results will vary and Advertiser can easily fail to make money. The Leads were taken from reliable sources but Company can't guarantee their accuracy. The information presented is for illustrative and informational purposes only. Use all Leads, techniques and strategies at your own risk.
Making Decisions based on any information presented should be done with the knowledge that you could experience significant losses, or make no money at all.
You agree that our company is not responsible for the success or failure of your business decisions relating to any information, product or service presented.
11. RELATIONSHIP OF PARTIES
The relationship between Company and Advertiser under this Agreement is that of sales of leads by Company to Advertiser and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, broker, employee, servant, agent, or representative of the other for any purpose whatsoever. No party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another party or to bind another in any matter or thing whatsoever.
12. CONFIDENTIALITY
A. “Confidential Information” shall mean any confidential technical data, trade secret, know-how or other confidential information disclosed by any party hereunder in writing, orally, or by drawing or other form and which shall be marked by the disclosing party as “Confidential” or ”Proprietary”. If such information is disclosed orally, or through demonstration, in order to be deemed Confidential Information, it must be specifically designated as being of a confidential nature at the time of disclosure.
B. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is known to the receiving party at the time of disclosure or becomes known to the receiving party without breach of this Agreement; (ii) is or become publicly known through no wrongful act of the receiving party or any subsidiary of the receiving party; (iii) is rightfully received from a third party without restriction on disclosure; (iv) is independently developed by the receiving party or any of its subsidiary; (v) is furnished to any third party by the disclosing party without restriction on its disclosure; (vi) is approved for release upon a prior written consent of the disclosing party; (vii) is disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
C. The receiving party agrees that it will not disclose any Confidential Information to any third party and will not use Confidential Information of the disclosing party for any purpose other than for the performance of the rights and obligations hereunder during the term of this Agreement without the prior written consent of the disclosing party. The receiving party further agrees that Confidential Information shall remain the sole property of the disclosing party and that it will take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information by its employees. No license shall be granted by the disclosing party to the receiving party with respect to Confidential Information disclosed hereunder unless otherwise expressly provided herein.
D. Upon the request of the disclosing party, the receiving party will promptly return all Confidential information furnished hereunder and all copies thereof.
E. Advertiser shall not disclose any of the specific terms of this Agreement to any third party without the prior written consent of the Company, which consent shall not be withheld unreasonably. Notwithstanding the foregoing, any party may disclose information concerning this Agreement as required by the rules, orders, regulations, subpoenas or directives of a court, government or governmental agency, after giving prior notice to the other party.
F. If a party breaches any of its obligations with respect to confidentiality and unauthorized use of Confidential information hereunder, the non- breaching party shall be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as money damages notwithstanding anything to the contrary contained herein.
13. FORCE MAJEURE
Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
14. DUTIES AND OBLIGATIONS
A. It is understood that Company may render similar services, selling the same Leads to other Advertisers and/or continue to develop leads of its own and license or sell such leads to other Advertisers. Nothing contained in this Agreement shall preclude Company from rendering such services or continuing to develop and sell or license such Leads.
B. In its performance of this Agreement, each Party will comply with all applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Except as expressly provided herein, each Party will be responsible for all costs and expenses incurred by it in connection with the use of Leads, execution and performance of this Agreement.
15. JURISDICTION/DISPUTES
This Agreement shall be governed in accordance with the laws of the State of New Jersey. All disputes under this Agreement shall be resolved by litigation in the courts of Cedar Grove, New Jersey, U.S.A. including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
16. AGREEMENT BINDING ON SUCCESSORS
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
17. ASSIGNABILITY
Neither party may assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of the other party which shall not be unreasonably withheld.
18. WAIVER
No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
19. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
20. PROHIBITED ADVERTISING & PROMOTIONS
Advertiser represents to Company that the subject matter of the content of the Advertising and/or promotions doesn’t contain any illegal, immoral, repulsive, defamatory, derogatory, harassing, harmful, threatening, obscene, vulgar, pornographic, racial or ethnic objectionable materials, depict sexual situations, promote discrimination on the basis of race, sex, sexual preference, national origin, ethnicity, nationality, disability, religious preference, or contain any material that violates any patent, trademark, copyright, trade secret, confidential information, or other property rights of any other party.
20. INTEGRATION
This Agreement, along with other documents on this Web site, including but not limited to, the Web site copy, Terms of Service (TOS), Earnings Disclaimer, Disclaimer & Warranties Statement, and Privacy Statement, constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict therewith.
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