Terms and Conditions
The following Standard Terms and Conditions (the “Standard Terms and Conditions”) embody the agreement and the Insertion Order between Astoria Company, LLC., together with its web properties, including online promotional websites, (collectively, “Company”) and you (“You” or “Your” or “Publisher”), the user of advertising programs (“Programs”) sponsored by Company or its advertiser clients (“Advertisers”). You and Company may also be individually referred to herein as a “Party” and collectively as “Parties.” You agree to use the Programs and any additional services offered by Company in the future only in accordance with the Standard Terms and Conditions and any applicable Insertion Order (“IO”) (collectively, the “Agreement”). Each Party acknowledges and agrees that it shall not disclose the financial and placement terms contemplated by the Agreement to anyone except their respective employees or other third parties who have a need to know and are bound to maintain such confidentiality. Company reserves the right to make changes to the Programs and the Standard Terms and Conditions at any time so please routinely re-visit this page for updates. Notwithstanding Company providing courtesy notice to You of any Company modifications, Your continued use of the Programs after any such modification shall constitute Your consent to such modification.
- Overview of the Use of the Programs: The Standard Terms and Conditions, together with the IO, control set forth the terms and conditions of Company’s placement of Program offers on your media properties, such as your website, affiliated websites, or email distribution lists (“Media”). The Insertion Order will specify the amount and terms under which you will receive payment (“Payment”) pursuant to a particular event (“Event”), such as clicks, click-throughs, sales, registrations, impressions and leads (as further described below). The definition of the Event associated with a Program is set forth in the IO’s specifications, and such definition shall govern this Agreement. If you accept a Program, you agree to place that Program’s advertising creative (the “Creative”), in accordance with the terms of the accepted Program. Company may change a Program at any time upon reasonable notice to you unless otherwise specified. Similarly, you may terminate previously accepted Programs as provided in the Termination Section below unless otherwise specified. Company is responsible for displaying and administrating all active Programs and tracking the payments owed. As further provided in the Payment section below, Company’s figures and calculations shall be final and binding. Any questions regarding the data provided by Company must be submitted in writing within ten (10) days of receipt; otherwise the information will be deemed accurate and accepted as such.
- Lead Definitions and Conditions: In the event of lead campaigns, Company’s records will be used for counting the number of leads. The Publisher will only be paid for “Unique Qualified Leads.” While not a comprehensive listing of the characteristics of a Unique Qualified Lead: Users must affirmatively complete each data field themselves for a lead to be deemed valid. Manipulation of data is prohibited and any lead that is found to be inputted by a party other than the specific user to which the lead data relates shall be deemed unqualified pursuant to this Agreement. All leads must be submitted on an approved lead form by a user who is expressly searching for educational opportunities offered by Company and its client(s). An approved lead form is defined as a form created by Company. All leads shall be posted to Company in real time. Batching of leads (e.g., simultaneous multi-lead delivery) is prohibited. Pre-population of a lead form is prohibited unless otherwise specifically authorized in the IO. Content and other creative assets, pixel coding and reporting procedures mandated in the IO and/or provided by Company are to be adhered to and used strictly as stated in the IO for the applicable campaign and in no other manner and for no other purpose whatsoever.Further, Unique Qualified Leads are those wherein the email address of the lead is different than all of the other leads sent by the Publisher or any other source within ninety (90) days and there shall be one Unique Qualified Lead per user. Both Parties agree to use their best efforts to ensure that the leads are delivered and received properly. A lack of data integrity includes circumstances such as fake, incorrect, non-matching, or misrepresented data submitted into a form by a user. Examples would include but are not limited to area codes or zip codes that do not exist, or do not match the state identified in the form, fake names such as “Daffy Duck” or “Mickey Mouse,” or fake phone numbers such as (555) 555-5555.
- Approval/Changes/Modification/Implementation of the Programs: Publisher shall have no right to change the graphics, text and related elements in the Program creative at any time without Company’s written approval, pursuant to the requirements/standards of Company and its client(s), as applicable. Publisher shall only run Programs on the approved domains indicated in the Approved Domain Section of the IO, and shall only be paid for Unique Qualified Leads originated from such domains.
- Prohibited Content: It is agreed that Publisher shall not place any advertisement creative or landing page link(s) on the following type of sites: reward sites, contest sites, sweepstake sites, joke sites, incentivized sites, religious sites, freebie sites, pornographic sites, or prurient content sites, or sites that are not fully functional or are “under construction,” promote sexually explicit or obscene materials, promote violence, hate or discrimination of any type based on race, sex, religion, nationally, disability, sexual orientation, or age, or constitute or promote illegal activities, or are deemed to be offensive in nature, degrading, libelous, profane, or in bad taste. Should Company determine in its sole discretion that Publisher is in violation of the preceding sentence, Company shall have the right to immediately terminate on the basis of a material breach and withhold any monies due to Publisher indefinitely so that any damages may be determined and satisfied out of such funds. Provided further, if any other element of this “Prohibited Content” Section is breached, Publisher shall forfeit its entire compensation already paid or not yet paid for all leads emanating from violation, this Agreement will be subject to immediate termination, and Publisher shall indemnify Company for all claims related to the breach of the Section pursuant to Publisher’s duty to indemnify Company described below.
- Prohibited Activities: Company reserves the absolute right to immediately withhold payment, and pause and terminate the Agreement on the basis of the following prohibited activities: clicks without referring URLs; extraordinary high numbers of repeat clicks; driving traffic to advertising creative using any downloadable applications without the prior written approval of Company; auto-spawning of browsers; automatic redirecting of visitors; blind text links; misleading links or any other fraudulent activity or any alteration of the user experience through such actions as forced clicks; or any other method that may lead to artificially high numbers of delivered clicks; mailing emails to persons other than those persons who have requested or agreed to receive such emails (in violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the “CAN-Spam Act”); use of unsolicited email or inappropriate newsgroup postings to promote the creative; use of call centers, trademark pay per click bidding, chat-rooms or telephone solicitation; recycling of data; purchasing keywords from a search engine service provider that include the trademark, service mark, or brand name of the advertising client to which the applicable creative relates, or any derivative of or common misspellings of any such trademark, service mark, or brand name (“Advertiser Marks”), or purchasing online advertising inventory for purposes of running advertisements that include Advertiser Marks on web sites or within emails; or any activity, which in Company’s discretion, jeopardizes the integrity or reputation of Company or its clients.
- Limited License: Provided that You are not in breach of the Agreement, Company grants You a revocable, non-transferable, non-exclusive limited license to use the Programs and any data, reports, information or analyses arising out of such use, subject to the terms and conditions set forth herein. You acknowledge and agree that you do not have, nor will claim any right, title or interest in the Program software, applications, data, and methods of doing business or any elements thereof. Program integration tags must NOT be altered. Altering tags may preclude payment for Events.
- Fraud: It is the Publisher’s OBLIGATION to be vigilant in preventing and not committing fraud. Company SHALL HAVE THE RIGHT to withhold Your payment pending a thorough investigation and resolution of questionable circumstances. In the event Company detects fraud or the possibility of fraud Your account will be made inactive pending further investigation. If greater than fifty percent (50%) of the leads in any specific campaign are determined to be fraudulent, by such actions as adding leads or clicks or inflating leads or clicks by fraudulent traffic generation (as determined by Company in Company’s sole discretion, such as pre-population of forms or mechanisms not approved by Company), Company reserves the right to deem the entire cohort of leads invalid. Company’s determinations regarding fraud shall be final and binding.
- Payment: IMPORTANT NOTICE TO LEAD BUYERS WHERE ASTORIA COMPANY IS THE LEAD SELLER (ASTORIA IS THE LEAD SELLER), PER THE SIGNED INSERTION ORDER AGREEMENT, IN ORDER TO INDUCE SELLER (ASTORIA COMPANY) TO EXTEND CREDIT TO BUYER, THE PERSON(S) SIGNING THE INSERTION ORDER EACH PERSONALLY GUARANTEES ANY AND ALL OBLIGATIONS OF BUYER TO SELLER (ASTORIA COMPANY) AND WAIVES NOTICE OF ACCEPTANCE AND/OR ANY REQUIREMENT THAT THE SELLER (ASTORIA COMPANY) FIRST PROCEED AGAINST BUYER OR ANY SECURITY GIVEN BEFORE PROCEEDING AGAINST GUARANTOR.
TO ALL SELLERS: You will be paid per the occurrence of an Event. Every Publisher account must have a unique, valid taxpayer identification number (“TIN”) or valid Social Security number or equivalent taxpayer identification number. Each Party agrees to be responsible and fully liable for the payment of all taxes applicable to compensation provided for herein and further agrees to indemnify and hold the other harmless for any lack of compliance with tax obligations related to the compensation. All payments are based on actual figures as defined, accounted and audited by Company and/or Advertiser. Payment to Publisher shall be based on Company’s statistics, pursuant to Company’s reporting system, and the CPL, CPA, CPM or CPC rate set forth in the Insertion Order. In an ongoing effort to improve lead quality, Company will make available statistical approximations in real time during the campaign. These are solely estimations in advance of the client’s final independent determinations regarding lead results; Company shall provide Publisher with the total number of billable Unique Qualified Leads by the twentieth (20th) day of each month following the lead generation activity month. Any questions regarding the data provided by Company must be submitted in writing within ten (10) days of receipt; otherwise the information will be deemed accurate and accepted as such. Further, in the event Company clients subsequently “scrub” or eliminate any additional leads after the calculation provided by the 20th day of each month, those unqualified leads will be deducted from the following month’s billing report. Publisher must provide Company with an invoice to facilitate payment. Subject to Publisher’s compliance with the terms of the Agreement, including, for example, the “Prohibited Activities” provision set out below, payments shall be made by Company on a net 30 basis following receipt of invoice from the Publisher. For the avoidance of doubt, it is acknowledged and agreed that Publisher shall not be paid by Company pursuant to the Agreement, and waives any claim pursuant thereto, in the event that Company is not paid by the related advertiser. No checks will be issued for any amounts less than $100 U.S.D and all un-issued earnings will rollover to the next pay period.
- Termination: The Agreement shall commence on the first day it is signed by both Parties (faxed, scanned or copied version of original signed documents are acceptable) and shall be effective as provided in the Insertion Order. Either Party may terminate with twenty-four (24) hours notice. Provided however, in addition to any and all available legal and equitable remedies, Company reserves the right, in its sole and absolute discretion, to terminate immediately in the event of a material breach, including without limitation, its determination of the possibility of or existence of fraudulent activity such as inflated or fraudulent actions, leads or clicks, credit card fraud or other electronic payment related fraud. Further, the Agreement shall terminate immediately upon the dissolution or insolvency of either Party. Notwithstanding the foregoing, Company reserves the right, in its sole and absolute discretion, to substitute a specific Program at any time for any reason, upon notice to the Publisher. Termination notice may be provided via e-mail. All monies due to Publisher will be paid during the next billing cycle. The representations, warranties and obligations contained herein shall remain in full force and effect after termination of the Agreement. All payment obligations accruing prior to the termination date shall survive until fully performed.
- Ownership of Data: All information submitted by end-user customers pursuant to a Program is proprietary (“Proprietary Information”) and exclusively owned by Company and its clients. Company shall retain the sole and exclusive right to use all data derived from the campaign provided that Publisher may use and disclose the anonymous visitors’ data (other than personally identifiable information) (i.e. any data or information that specifically identifies an individual end user or Company or from which an individual end user or Company be discovered is removed, and such aggregated data is combined with aggregate data of other Publisher clients) for internal business purposes and to disclose such aggregated data for (a) Publisher’s reporting purposes consisting of compilation of aggregated statistics about its services (e.g., the aggregate number of messages delivered) that may be provided to customers, potential customers and the general public, and (b) if required by court order, law or government agency, provided that in such event, only to the extent required to be disclosed and provided Publisher notifies Company and Company has the opportunity to challenge or seek a protective order for such data. All Proprietary Information is protected by copyright, trademark and other intellectual property law. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any Proprietary Information in any manner. These non-disclosure obligations shall also survive the termination of the Agreement.
- LIMITATIONS ON LIABILITY: EXCLUDING IN THE INSTANCE OF FRAUD AND PURSUANT TO THE PARTIES’ OBLIGATIONS UNDER THE INDEMNIFICATION SECTION, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS, LOST REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORSEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR OTHER LEGAL THEORY, EXCEED THE AMOUNTS PAID BY COMPANY TO PUBLISHER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE ASSERTION OF DAMAGES AND/OR OTHER RELIEF. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
- Indemnity: Publisher is solely responsible for any and all liability arising out of or relating to (a) the content and other material set forth on the Media (other than through a Creative supplied by Company, unless such Creative was modified by Publisher without the express written consent of Company); and (b) any content or material to which visitors can link through the Media (other than through a Creative supplied by Company, unless such Creative was modified by Publisher without the express written consent of Company). Publisher hereby agrees to indemnify, defend and hold harmless Company and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (i) for libel, defamation, violation of right of privacy or publicity, breach of contract, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with your Media (except for Creative supplied by Company, unless such Creative was modified by Publisher without the express written consent of Company); (ii) arising out of any breach by Publisher of any duty, representation or warranty under this or any other agreement with Company; or (iii) relating to a contaminated file, virus, worm, or Trojan horse originating from the Media (other than through a Creative supplied by Company, unless such Creative was modified by Publisher without the express written consent of Company). Company hereby agrees to indemnify, defend and hold harmless Publisher and its officers, directors, agents, affiliates and employees from and against all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of a breach by Company of any duty, representation or warranty under the Standard Terms and Conditions.
(a) Assignment and Jurisdiction: Company may assign the Agreement to a subsidiary or business successor. Publisher may not assign the Agreement without the prior written consent of Company, which shall not be unreasonably withheld. The Agreement shall be construed and governed by the law of the state of California. You expressly consent to the exclusive venue and personal jurisdiction of the state and federal courts located in Oakland, California for any actions arising from or relating to the Agreement.
(b) Severability: If any provision of the Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.
(c) Notice: All notices and other communications shall be sent by email to the email addresses for Publisher and Company indicated in the Agreement unless a different email address or notice method has been selected after the execution of the Agreement and has been duly communicated to the Party giving notice.
(d) Attorneys’ Fees: The prevailing Party shall be entitled to an award of its reasonable costs and expenses, including attorneys’ fees, in any action or proceeding arising out of this Agreement.
(e) Survival: The expiration or termination of this Agreement shall not prejudice the application of its relevant terms to any remedies sought thereafter or to any rights or obligations then outstanding or specified or implied to survive expiration or termination of the Agreement, including, without limitation, the provisions regarding indemnification, warranty disclaimers, limitation of liability provisions and the obligation to make any and all payments due hereunder.
Telecommunications Protection Act (TCPA) Addendum
Astoria and Seller desire to comply with the requirements of the TCPA applicable to them, as described hereinafter;
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, Astoria and Seller enter into this TCPA Addendum to set forth their respective rights, responsibilities and obligations, and to supplement and amend the Agreement as follows.
SECTION I – IN GENERAL
1.1 Cooperation. The parties agree to cooperate in good-faith and to assist one another in complying with the requirements of the TCPA.
1.2 Consistency. Except as set forth in this TCPA Addendum the Agreement shall remain unchanged and in full force and effect. The Agreement and this TCPA Addendum shall be construed as broadly as necessary to implement and comply with the TCPA. To the extent any term or provision of this TCPA Addendum is inconsistent with any term or provision of the Agreement, this TCPA Addendum shall control and supersede the Agreement and any ambiguity shall be resolved in favor of a meaning that complies and is consistent with the TCPA.
1.3 Continuing Compliance. The parties acknowledge that the Agreement may need to be modified to ensure compliance and consistency with amendments to and changes in applicable federal and state laws and regulations, including but not limited to the TCPA, and the parties agree to amend the Agreement, at any time or from time to time, for such purposes.
1.4 Use of Subcontractors. If Seller uses one or more subcontractors to create, receive, maintain, or transmit Leads, Seller shall require each such subcontractor to agree, in writing, to comply with the express written consent requirements of the TCPA and all restrictions and conditions to which Seller is bound by this TCPA Addendum.
SECTION II – EXPRESS WRITTEN CONSENT
2.1 Acknowledgement. Seller acknowledges that the standards, requirements and specifications of the TCPA with respect to obtaining express written consent apply to Seller with respect to the Leads.
2.2 Representations and Warranties. Seller represents and warrants to Astoria, and any third-party taking action with respect to a Lead, that all Leads:
(a) were generated after clear and conspicuous disclosure of the consequences of providing the requested consent (i.e. informed the consumer they will receive future calls / texts intended to offer quotation services);
(b) sufficiently show the consumer unambiguously agreed to receive such calls / texts at the telephone number(s) they designated;
(c) did not require, directly or indirectly, that the consumer execute any agreement as a precondition to receiving quotation services; and
(d) were signed by the consumer (i.e. the consumer took affirmative action to acknowledge their intention to receive quotation calls / texts).
2.3 Content and Form of Consent. Seller shall provide to Astoria, in advance of the effective date of this TCPA Addendum, its form document(s) containing the exact language of the consents Seller intends to provide consumers and agrees to work with Astoria to implement acceptable notice and presentation formatting and to provide Astoria with advance notice of changes to approved forms. If it becomes necessary, Seller shall provide Astoria with a list of the URLs of all Internet landing pages and/or copies of other lead generation sources through which Seller generates Leads for Astoria to confirm or document that they comply with TCPA content and form requirements.
SECTION III – LEADS DOCUMENTATION
3.1 Lead Data File. In addition to the mandatory data fields required under the Agreement for a lead to be considered a Valid Lead, Seller shall include for every Lead in a Lead data file a yes/no indicator of whether the consumer has provided their TCPA compliant consent, a Lead born-on date and time, and the consumer’s IP address.
3.2 Consent Verification. Seller shall bear the burden of proof to show, with respect to all Leads, that the consumers provided express written consent to be called and/or texted. Seller shall maintain such documentation as is necessary to demonstrate that all TCPA express written consent requirements were met with respect to each Lead sold to Astoria and shall promptly provide such documentation to Astoria, at any time and from time to time, upon request. Seller agrees that it will retain and make available this consent verification proof for all Leads for a period of five (5) years from the date each such Lead is generated.
3.3 Revocation of Consent. Seller shall, with respect to all Leads sold to Astoria, promptly report to Astoria any consumer revocation of consent of which it becomes aware, regardless of the time or manner in which such revocation of consent may be made. Seller agrees to require its workforce, agents and subcontractors to promptly report to Seller any such revocation of consent.
3.4 Policies and Procedures. Seller shall implement and maintain (review, modify and update as appropriate) reasonable policies and procedures to ensure: (a) all Leads generated conform to the express written consent requirements of the TCPA, and (b) Seller has documented and can produce evidence of such consent, for each Lead. Seller shall provide a copy of its TCPA policies and procedures to Astoria upon request.
SECTION IV – , INDEMNIFICATION, SUBPOENA
4.1 . Seller shall maintain at all times during the term of the Agreement commercial general liability and errors and omissions coverage (including contractual liability coverage for indemnification) with a limit of liability per occurrence of at least $1,000,000. Upon request, Seller shall provide evidence of such coverage to Astoria.
4.2 Indemnification. Seller shall indemnify, defend, save and hold harmless Astoria, its directors, officers, employees and agents against and from any and all claims, actions, liabilities, judgments, fines, damages, losses, assessments, penalties, awards and expenses, of any kind or nature whatsoever, including without limitation, attorney’s fees, expert witness fees, and costs of investigation, litigation or dispute resolution, arising out of or pertaining in any way to the absence or lack of veracity of express written consent of any Lead or any breach of this TCPA Addendum by Seller, any member of its workforce, its subcontractors or agents.
4.3 Response to Subpoenas. In the event Seller receives a subpoena or similar notice or request from any judicial, administrative or other party arising out of or in connection with this TCPA Addendum or Leads sold to Astoria, Seller shall promptly forward a copy of such subpoena, notice or request to Astoria, and afford Astoria the opportunity to be part of the decision making with regard thereto.
SECTION V – TERM AND TERMINATION
5.1 Term. Unless terminated sooner in accordance with the Agreement or as set forth below, this TCPA Addendum shall remain in full force and effect for so long as Seller provides Leads to Astoria.
5.2 Survival. Notwithstanding the foregoing, Sections 2.2, 3.2, 4.2 and 4.3 of this TCPA Addendum shall survive any expiration or termination of the Agreement and continue in full force and effect for a period of five (5) years.
5.3 Termination. If Astoria becomes aware of any pattern of activity or practice of Seller that violates this TCPA Addendum or the TCPA Astoria will require Seller to promptly take reasonable steps to end such violation. If Seller becomes aware of any violation of this TCPA Addendum or the TCPA by any member of its workforce, its subcontractors or agents Seller shall promptly notify Astoria and take reasonable steps to end such violation. If Seller fails to take promptly all reasonable steps necessary to end any such violation, Astoria may immediately terminate the Agreement.
SECTION VI – MISCELLANEOUS
6.1 Disclaimer. Astoria makes no warranty or representation that compliance by Seller with this TCPA Addendum will be adequate or satisfactory for Seller’s compliance with the TCPA.
6.2 Notice. Any notice required or permitted pursuant to this TCPA Addendum shall be in writing, addressed or forwarded to the other party at the e-mail address set forth at the end of this Agreement (or to such other e-mail address as either party may designate from time to time), read receipt requested, and shall be effective on the date of receipt.
6.3 Gender and Number. The use of the masculine, feminine or neuter genders, and the use of the singular and plural, shall not be given any effect of exclusion or limitation in this Agreement. The use of the word “person” or “party” shall mean and include any individual, trust, corporation, partnership or other entity.
6.4 No Waiver. No failure by either party to insist upon strict compliance with any term or provision of this TCPA Addendum, to enforce any right, or to seek any remedy upon any default shall affect, or constitute a waiver of, any party’s right to thereafter insist upon such with respect to that default or any prior, contemporaneous or subsequent default.
6.5 Remedies. All rights and remedies provided in this TCPA Addendum are cumulative and the exercise of any one or more right or remedy will not affect any other rights or remedies under the Agreement or applicable law.
6.6 Execution. This TCPA Addendum may be executed in multiple counterparts, each of which shall constitute an original but all of which shall constitute one and the same addendum to the Agreement.
- Entire Agreement: The Agreement contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants.