PUBLISHER TERMS AND CONDITIONS
This Agreement is made by and between Publisher and VaBackup and is effective as of the date that the Publisher clicks the “Accept” button below (“Effective Date”). Publisher and VaBackup may be collectively referred to as the “Parties.” For mutual and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
Section 1. The Program.
1.1 The VaBackup Network. VaBackup maintains an online exchange network (“VaBackup
Network”), which is a suite of online marketing services that enables Publisher to identify and
conduct promotional campaigns that are available from third-party merchants (“Advertisers”).
The VaBackup Network allows Advertisers to post an available advertising campaign (“Campaign”)
on the VaBackup Network. Within the VaBackup Network, Publisher can apply to an available Campaign posted on the VaBackup Network. Each Campaign will specify the amount of compensation and the terms under which Publisher will receive a payout for leads when the applicable Campaign’s requirements are satisfied. When Publisher applies to a Campaign, Publisher expressly agrees to comply with the terms and conditions of this Agreement and the terms of the Campaign, and furthermore understands that engaging in acts or practices prohibited by this Agreement and the Campaign will result in immediate termination of this Agreement, termination of Publisher’s relationship with VaBackup and forfeiture of all money that VaBackup may owe Publisher.
1.2 License Grant and Restrictions. Publisher desires to use the VaBackup Network to
conduct Campaigns, either directly or through Publisher’s network of independent marketers
(“Marketing Affiliates”). Subject to the terms and conditions of this Agreement, VaBackup hereby
grants Publisher a limited, revocable, non-exclusive license to access and use, and reproduce
strictly as necessary to access and use, the VaBackup Network for the purpose of accessing and using
the VaBackup Network with the understanding that this right is personal to you and may not be sublicensed or transferred to any other party. The Publisher agrees not to modify, alter, misrepresent
or embellish the Campaign or the Advertising Materials or any part thereof in any way, directly or indirectly, without the express prior written consent of VaBackup. This license gives the Publisher no independent right to use VaBackup’s or its Advertiser’s trademarks, service marks, names, logo or other intellectual property. Any breach of this license shall constitute a material breach of this Agreement.
1.3 Advertising Rules. Publisher shall comply with VaBackup’s Advertising Rules (the “Advertising Rules”), which is marked as Appendix A and is attached hereto and incorporated by this reference. VaBackup reserves the right to modify the Advertising Rules from time-to-time. It is
Publisher’s responsibility to check the VaBackup website for any changes to the Advertising Rules.
If Publisher objects to any changes to the Advertising Rules, Publisher’s sole remedy is to
terminate this Agreement pursuant to Section 9.0 below.
1.4 Advertising/Marketing Copy. Publisher shall only use advertising and marketing copy and creative materials (collectively “Advertising/Marketing Copy”) provided by Advertiser.
No changes may be made to any Advertising/Marketing Copy without VaBackup’s and Advertiser’s prior written consent.
1.5 Lead Buyers. If Publisher agrees to purchase from VaBackup data collected from consumers who complete an online form and submit contact information and details about their request for information or service quotes (“leads”). Leads and related marketing services are provided on a non-exclusive basis for a specific type of product or service for which the consumer submitted the online form. Publisher is authorized to use the leads and the VaBackup Network solely for Publisher’s internal marketing purposes of proposing only Publisher’s products and services in the specific vertical to the consumer. Publisher may not use the lead or services for purposes of
marketing or offering products and services other than those that the consumer has specifically
inquired about, or of third parties. VaBackup has made a reasonable effort, based on currently
understood legal requirements, to obtain the consumer’s online prior express written consent to be contacted by automatic telephone dialing systems on their mobile phones pursuant to the TCPA, and have provided to Publisher with a copy of the consent language and mechanism VaBackup uses.
Publisher should determine whether the consents VaBackup has obtained are legally sufficient and
comply with Publishers internal marketing policies.
1.6 Use. The Publisher agrees to undertake and complete the services as specified by
the Campaign, including all restrictions and in accordance with this Agreement and the highest
industry standards. Publisher’s use of the VaBackup Network is subject to all applicable local, state,
national and international laws and regulations. The Publisher understands that participation in
distributing Campaigns in the VaBackup Network is not an endorsement by VaBackupof any Advertiser.
VaBackup operates the VaBackup Network and provides the Campaign as a neutral host. VABACKUP is not
responsible or liable for the acts, omissions, agreements or promises of or by any Advertiser or
Publisher using the VaBackup Network to enter into any arrangement or otherwise work with any
other person or entity. VaBackup does not make any representation or warranties with respect to the
communications that Publisher delivers on behalf of Advertisers.
Section 2. Data.
2.1 Publisher Data. Publisher shall deliver to VaBackup and VaBackup shall host and maintain
a database (“Customer Database”) to host external data delivered by Customer to VaBackup to enable
the use of the VaBackup Network in accordance with the terms and conditions of this Agreement. So
long as this Agreement is in effect, Publisher grants to VaBackup a non-exclusive irrevocable royalty-free license to access the Customer Data in connection with the License. For avoidance of doubt,
Publisher is and remains the sole owner of the Customer Data in the VaBackup Network. Publisher
shall be solely responsible for and represents and warrants to VaBackup that PublishPer has full and
complete authority to access and deliver the Customer Data for hosting in the VaBackup Network to include the necessary consent. VaBackup reserves the right at any time to refuse hosting Customer
Data in its own discretion.
2.2 Compliance. Publisher shall use the VaBackup Network and all Publisher Data, as
described above, within the VaBackup Network in accordance with any and all restrictions applicable
to such data and all applicable laws. PUBLISHER WARRANTS AND REPRESENTS THAT
PUBLISHER SHALL AT ALL TIMES REMAIN IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS WITH REGARD TO THE PURPOSE FOR WHICH THIS AGREEMENT WAS ENTERED INTO, INCLUDING WITHOUT LIMITATION TO THE TELEPHONE CONSUMER PROTECTION ACT (“TCPA”), FAIR DEBT COLLECTIONS PRACTICES ACT (“FDCPA”), FAIR CREDIT
REPORTING ACT (“FCRA”), CAN-SPAM ACT OF 2003, TELEMARKETING SALES
RULE (“TSR”), MARKETING TO MINORS, FEDERAL COMMUNICATIONS
COMMISSION (“FCC”) OR FEDERAL TRADE COMMISSION (“FTC”) RULES OR
REGULATIONS and all other applicable laws related to pre-recorded telephone and/or text
messages and the use of automated dialing equipment.
(a) Publisher to transfer such data to third party business partners for marketing purposes; and (b)
Publisher to use the data as contemplated herein; (ii) the data was/will be obtained, collected and
compiled without employing deceptive or illegal practices; (iii) recipients have consented to
receiving calls from Publisher, and such consent includes the right to transfer the data to third party
business partners for the use contemplated by this Agreement; and (iv) the data was obtained using
methods that fully comply with all applicable state, federal and international laws, rules and
implementing regulations including, but not limited to, the Federal Trade Commission Act, the
FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Gramm-Leach-Bliley Act, Health Insurance Portability and Accountability Act of 1996, Personal Information Protection and Electronic Documents Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Telephone Consumer Protection Act, the Telemarketing Sales Rule and all of the rules and
regulations promulgated thereunder, as well as all applicable state laws including, without
limitation all rules and regulations promulgated under such state laws, international laws, rules and
regulations. VaBackup reserves the right to terminate this Agreement if Publisher cannot prove
that every Recipient provided the requisite permission.
2.4 Use of Information. VaBackup shall have the immediate and exclusive right to use,
exploit, and sell any information obtained in connection with traffic driven to the VaBackup Network.
Neither Publisher nor Marketing Affiliates have any right to or interest in such information other
than the right to be paid in accordance with the terms of this Agreement.
Section 3. Publisher’s Marketing Affiliates
3.1 Use of Marketing Affiliates. Publisher may utilize the services of third Parties or
networks (“Marketing Affiliates”) to promote Advertiser’s products and services only with the
prior written consent of VaBackup. VaBackup reserves the right to withhold or rescind consent for any
reason including, without limitation, concerns about the Marketing Affiliate’s marketing materials
or methods. Any payable action by an unapproved Marketing Affiliate is an Excess Unit for which
no compensation is due to Publisher.
3.2 Actions of Marketing Affiliates. Publisher agrees that the acts and omissions of
Publisher’s Marketing Affiliates shall be deemed Publisher’s acts. Accordingly, Publisher agrees
without limitation to indemnify and hold harmless VaBackup for the acts and omissions of its
Marketing Affiliates. Additionally, Publisher agrees to contractually obligate each Marketing
Affiliate to conduct its business in strict compliance with applicable law, the terms of this
Agreement, the Advertising Rules and the Campaign. Publisher shall monitor the activities of its Marketing Affiliates to ensure compliance.
3.3 Publisher’s Duties with Marketing Affiliates. To the extent Publisher conducts a
Campaign through Marketing Affiliates, it shall (1) require each of its Marketing Affiliates to
acknowledge and confirm compliance with this Agreement, the Advertising Rules, and the
Campaign in writing, and shall maintain records of all such confirmations; (2) require each of its
Marketing Affiliates to provide his/her/its full name, and all contact and business information
required by this Agreement, the Advertising Rules, and the Campaign; and (iii) expressly notify
each of its Marketing Affiliates in writing that engaging in acts or practices prohibited by this
Agreement, the Advertising Rules, and the Campaign will result in immediate termination from the Publisher’s network and the forfeiture of all money that may be owed to the Marketing
3.4 Assurances of Compliance. Publisher and Marketing Affiliate shall provide VaBackup
with reasonable additional assurances of compliance with this Agreement, the Advertising Rules, and the Campaign upon request. Such additional assurances may include, but are not limited to, evidence of due diligence, copies of emails and advertising materials, copies of all information pertaining to complaints received by Publisher or Marketing Affiliates, evidence of termination of dealings with Marketing Affiliates, and all such other information that VaBackup may reasonably require to confirm that Publisher or Marketing Affiliate is acting in strict compliance with all applicable laws, rules, and regulations, as well as the terms of this Agreement, the Advertising Rules, and the Campaign.
3.5 No Assignment. This Agreement cannot be assigned by Publisher to another party
without the prior written consent of VaBackup. VaBackup may assign any or all of its duties to another
party without Publisher’s consent.
Section 4. Representations; Warranties; and Disclaimer.
4.1 Mutual Representation. Each party represents and warrants that: (1) it has the full
corporate right, power and authority to enter into this Agreement, to grant the rights thereunder
and to fully perform its obligations under this Agreement; (ii) the execution of this Agreement by
such party, and the performance by such party of its obligations hereunder, does not and will not
violate or conflict with any agreement to which such party is a party or by which otherwise bound;
and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid
and binding obligation of such party, enforceable against such party in accordance with its terms.
4.2 Compliance with Laws. Publisher and its Marketing Affiliate(s) shall conduct all
calls, communications, advertising, marketing, sales, and transmissions in strict compliance with
all applicable laws, rules, and regulations, including but not limited to all laws, rules, and
regulations governing: 1) the transmission of telephone calls; 2) the transmission of unsolicited
commercial electronic mail messages or “spam” (this includes without limitation the Can-Spam
Act of 2003); 3) email and Internet-based marketing (this includes without limitation the
Telemarketing Sales Rules of the United States Federal Trade Commission); 4) marketing to
minors; 4) the Telephone Consumer Protection Act; 5) the Fair Debt Collections Practices Act;
and 6) the Fair Credit Reporting Act; and PUBLISHER WARRANTS AND REPRESENTS THAT PUBLISHER AND ITS MARKETING AFFILIATES SHALL AT ALL TIMES REMAIN IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS WITH REGARD TO THE PURPOSE FOR WHICH THIS AGREEMENT WAS ENTERED INTO, INCLUDING WITHOUT LIMITATION TO THE TELEPHONE CONSUMER PROTECTION
ACT (“TCPA”), FAIR DEBT COLLECTIONS PRACTICES ACT (“FDCPA”), FAIR CREDIT
REPORTING ACT (“FCRA”), AND FEDERAL COMMUNICATIONS COMMISSION
(“FCC”) OR FEDERAL TRADE COMMISSION (“FTC”) RULES OR REGULATIONS and all other applicable laws related to pre-recorded telephone and/or text messages and the use of automated dialing equipment.
4.3 Non-Infringement. That Publisher’s use and Marketing Affiliate’s use of the Advertising/Marketing Copy do not infringe the intellectual property rights of any third party or
violate any applicable law.
4.4 Privacy. Both Parties represent and warrant that they are fully compliant with applicable privacy laws, and all federal and state regulations.
4.5 VaBackup’s policies, specifications, and/or recommendations with respect to Publisher
websites, text messaging, email, suppression, compliance notices, email and telephone number
distribution lists and/or marketing channels used by the Publisher should not be construed as legal
advice, or as sufficient guidelines to ensure that such websites, text messaging, email, suppression,
compliance notices, email and telephone number distribution lists and/or marketing channels
comply with applicable law. VaBackup does not represent or warrant that such specifications, and/or recommendations are legally compliant or appropriate. VaBackup assumes no obligation and hereby disclaims any liability for Publisher’s use of and/or reliance upon any such specifications, and/or recommendations.
4.6 No Warranties. VaBackup MAKES NO EXPRESS OR IMPLIED WARRANTY,
TO THE EXTENT PERMISSIBLE BY LAW, OTHER THAN THE WARRANTIES
EXPRESSED IN THIS AGREEMENT, IF ANY, AND SPECIFICALLY DISCLAIMS ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. VaBackup MAKES NO WARRANTY THAT THE VaBackup NETWORK WILL
MEET PUBLISHER’S REQUIREMENTS, OR THAT THE VaBackup NETWORK WILL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. VaBackup WILL MAKE
COMMERCIALLY REASONABLE EFFORTS TO RESOLVE ANY TECHNICAL
PROBLEM PUBLISHER MAY EXPERIENCE WHILE USING THE VaBackup NETWORK.
4.7 Disclaimer. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO
APPLICABLE LAW, VaBackup DISCLAIMS ALL WARRANTIES OF ANY KIND,
CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH
RESPECT TO ANY MATTER, WHETHER EXPRESS OR IMPLIED INCLUDING
WITHOUT LIMITATION ANY WARRANTY OF PROFITABILITY, SATISFACTION
QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES IS VaBackup RESPONSIBLE
FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY CLIENT, ADVERTISER OR PUBLISHER, OR SUCH CLEINT, ADVERTISER OR PUBLISHER’S WEB SITE(S), AND/OR THE CONTENT OF A CLIENT OR AN ADVERTISER’S WEB SITE OR THAT A CLIENT OR AN ADVERTISER MAKES AVAILABLE THROUGH THE PROGRAM.
Section 5. Indemnification and Limitations.
5.1 Indemnification. Publisher and Marketing Affiliate shall defend, indemnify and
hold harmless VaBackup, and its respective shareholders, directors, officers, and employees, against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys’ fees) incurred, claimed, or sustained as a
result of (a) Publisher’s or Marketing Affiliate’s breach of or non-compliance with this Agreement,
the Advertising Rules, and/or the Campaign (b) Publisher’s or Marketing Affiliate’s violation of
any law, or an alleged violation of law, (c) any violation or alleged violation by Publisher or
Marketing Affiliate of any rights of another, including breach of a person’s or entity’s intellectual property rights (each (a)-(c) individually is referred to hereinafter as a “Claim”). Publisher’s
obligations shall include the payment of VaBackup’s actual attorney’s fees. VaBackup shall have the right
to retain legal counsel of its choosing. If Publisher and Marketing Affiliate becomes aware of or
involved in any Claim that gives rise to a duty of indemnification, Publisher and Marketing
Affiliate shall promptly notify VaBackup in writing. Publisher and Marketing Affiliate shall not settle
any Claim without VaBackup’s prior written consent. Publisher and Marketing Affiliate also shall
indemnify VaBackup from any and all attorneys’ fees and other costs incurred by VaBackup in responding
to, defending, investigating, and/or enforcing its rights relative to a Claim (and VaBackup shall have
the right to retain legal counsel of its choosing as set forth above). In the context of this section
only, the term “VaBackup” shall include members, managers, officers, directors, employees, corporate
affiliates, subsidiaries, agents, attorneys, and subcontractors. This Section 5 shall survive
termination of this Agreement.
5.2 Limitation of Liability. In no event shall VaBackup or its members, managers, officers, directors, employees, contractors, attorneys, licensors, or licensees be liable to Publisher or a
Marketing Affiliate for any indirect or direct damages, loss of profits, or other incidental,
consequential, or special damages, even if advised of the possibility of such damages. In no event
will VaBackup’s total liability under the terms of this Agreement from all causes of action of any kind,
including, without limitation, contract, tort (including negligence), strict liability, breach of
warranty, misrepresentation, or otherwise, exceed the amount paid by VaBackup to Publisher under
this Agreement during the three (3) months prior to VaBackup’s receipt of written notice from
Publisher or a Marketing Affiliate of a claim of liability.
Section 6. Confidential Information.
6.1 Confidential Information Defined. The Parties acknowledge that in the course of fulfilling their obligations under this agreement, Publisher and Marketing Affiliate may have access to certain confidential information of VaBackup (“Confidential Information”), which may include but is not limited to: all documents, marketing materials, data files, information, and other materials made available to Publisher and Marketing Affiliate in connection with Agreement, including without limitation: names, telephone numbers, email addresses and other personal information pertaining to leads; VaBackup’s sales, cost, pricing, and financial information; the names and contact information for potential and actual VaBackup customers; the identity and contact information of VaBackup’s employees, contractors, other publishers, and other marketing affiliates; the methods used by VaBackup to acquire consumers; VaBackup’s business plans; marketing strategies, methods, and materials; computer programs and source code; and all related Confidential Information shall be deemed to have been furnished to Publisher and Marketing Affiliate in confidence and shall remain the exclusive property of VaBackup during and after the term of this Agreement. Publisher and Marketing Affiliate shall keep in strict confidence all Confidential Information. Publisher and Marketing Affiliate shall not at any time use Confidential Information for its own benefit, or disclose or permit any of its employees, agents, or representatives to disclose Confidential Information without VaBackup’s prior written consent. Publisher and Marketing Affiliate
further represents and warrants that it shall not use the Confidential Information to compete with
VaBackup, solicit VaBackup’s customers or circumvent this Agreement.
6.2 Non-Confidential Information. Confidential Information does not include: 1)
Information already known to Publisher before disclosure; 2) Information already known to the
public, other than as a result of breach of Agreement; 3) Information properly received from a third party; 4) Information subsequently independently developed; and Information required to be disclosed by law; and 5) All such other information that is the exclusive property of Publisher and which, if disclosed, could cause harm to Publisher.
6.3 Representations of Publisher. Publisher, on its own behalf and on behalf of its Marketing Affiliates hereby represents and warrants that it shall not, for any reason or under any
circumstance at any time, directly or indirectly use, convert, apply, appropriate, employ, alter,
transform, assign, put into operation or otherwise use any of the Confidential Information, in whole
or in part, for any purpose whatsoever, other than as expressly permitted herein. Publisher
acknowledges any such action taken by it or its Marketing Affiliates is in contravention to this
Agreement and is strictly prohibited.
6.4 Injunctive Relief. A breach of this section will cause VaBackup irreparable harm and shall entitle VaBackup to immediate injunctive relief without the necessity of posting bond, in addition to an award of damages. But for Publisher’s willingness to agree to this section 6.4, VaBackup would not have entered into this Agreement with Publisher.
Section 7. Fees.
7.1 Commission(s). Advertiser pays commissions to Publisher in accordance with the commission schedule posted for each Campaign. VaBackup will facilitate payment by collecting funds from Advertisers and distributing commission payments (less the applicable transaction fee) to Publisher. Publisher has no right to receive a commission for a payable action (e.g. sale, credit card submit, or submission of contact information by a consumer) that is invalid, generated by fraud, charged back, refunded, or in excess of the maximum of the number of actions specified (in either case, referred to in this clause as “Excess Units”).
7.2 Commission Distribution. VaBackup will pay to the Publisher a commission payment (“Commission Distribution”) in accordance with the payment terms outlined in each Campaign
that Publisher applies for on the VaBackup network. All payments will be made in United States
7.3 Timeliness of Payment. VaBackup shall distribute Publisher’s Commission Distribution after VaBackup receives funds from the Advertiser. VaBackup may elect to pay the Commission Distribution prior to receiving funds from the Advertiser. However, any election to pay a Commission Distribution prior to receipt of funds from the Advertiser shall not obligate VaBackup to continue to make Commission Distribution prior to its receipt of funds from the
Advertiser. Publisher is not entitled to payment for a Payable Action that is an Excess Unit.
7.4 Currency. All monetary amounts specified in this Agreement are in United States dollars.
7.5 Records. Publisher shall maintain accurate records relating to this Agreement and the business methods and materials Publisher and Marketing Affiliates use to conduct each
marketing campaign. Publisher agrees that VaBackup, or any designee of VaBackup, shall have the right,
at VaBackup’s sole cost and expense, to audit and copy these records and any source documents used in their preparation during normal business hours upon written notice at least five (5) business
days before the commencement of the audit. If the audit reveals an overpayment of more than two
percent (2%), notwithstanding the foregoing, Publisher shall immediately compensate VaBackup for said overpayment and reimburse VaBackup for all of its costs and expenses related to the audit. VaBackup reserves the right to withhold all or some of the amounts due to Publisher in the event VaBackup
determines, in its sole discretion, that Publisher is in violation of this Agreement, for traffic generated by fraudulent means and/or to offset pay due payments to VaBackup.
7.6 Tracking. Publisher agrees to use tracking code(s) (also known as “pixels”) as requested by VaBackup for network tracking and reporting purposes.
Section 8. Fraud and Non-Compliant Activity.
8.1 Termination for Fraud or Non-Compliant Activity. If VaBackup determines, in its sole
discretion, that the Publisher or Marketing Affiliate has engaged in any activity that VaBackup
considers to be fraudulent or which might bring the reputation or standing of VaBackup into disrepute
either with the general public or with Advertisers or potential Advertisers of VaBackup, or otherwise
that the Publisher or Marketing Affiliate have engaged in activities which might be considered
fraudulent, VaBackup may, but will not be obligated to:
(a) suspend or terminate the Publisher’s membership in the VaBackup Network, without notice, release to any third party information relating to the identity and location of the
Publisher if required to do so in order to enforce this Agreement; and
(b) withhold all Publisher Commission Distributions for the Campaigns. In
addition, in the event that Publisher has already received payment resulting from fraudulent
activities, VaBackup reserves the right to seek credit or remedy from future earnings or to demand
reimbursement from Publisher for all Commission Distributions paid;
(c) publisher agrees that VaBackup is under no obligation to pay for, and will not pay, for, any leads derived from violations of the Telemarketing Sales Rule (“TSR”) or the Telephone Consumer Protection Act (“TCPA”), that liability for any violations of the TSR, TCPA, or related laws shall rest with Publisher only, and that Publisher shall indemnify VaBackup if VaBackup is held liable for any such violations as provided below.
8.2 Fraudulent and Non-Compliant Activity. Fraud and non-compliant activity includes but is not limited to:
(a) engages in call duration circumvention;
(b) inflates the amount of actions, sales, leads, impressions or calls through any deceptive or misleading practice, method or technology;
(c) uses deceptive or abusive telemarketing practices;
(d) fails to obtain the necessary consent required under the TCPA;
(e) transmits calls or text messages without consent;
(f) violates any restrictions in this Agreement or the Campaign;
(g) has conversion rates significantly higher than VaBackup’s average for similar Campaigns;
(h) places VaBackup’s or Advertiser’s links on incentivized websites without VaBackup’s prior written consent;
(i) fails to obtain approval for Marketing Affiliates; or
(j) any activity which is determined by VaBackup, in its discretion, to be fraudulent. Publisher shall not, nor shall Publisher knowingly permit any other entity or person, to establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating events, or otherwise attempt to induce Users to call on any Campaign through use of any other incentives, or generate traffic in a manner other than as set forth in this Agreement or a Campaign, in each case without obtaining VaBackup’s prior written approval. The foregoing merely constitutes examples of fraudulent and non-compliant activity and should not be taken as a comprehensive list of all possible fraudulent activity.
Section 9. Term and Termination.
9.1 Term. Beginning on the Effective Date, Publisher may use the VaBackup Network to
promote Advertiser’s offers. The VaBackup Network is offered on an open-ended basis for a term
that begins on the Effective Date. This Agreement shall be deemed to be perpetually in effect
without further action by Publisher or by VaBackup unless either: a) VaBackup terminates the Agreement
or b) Publisher provides VaBackup written notice at thirty (30) days prior to the intended date of
9.2 Right to Terminate Agreement. If VaBackup learns, or has good reason to believe, that
Publisher or a Marketing Affiliate is not complying with the terms of this Agreement, the Advertising Rules, or the Campaign, VaBackup shall have the right to terminate this Agreement immediately and require Publisher to stop a specific Marketing Affiliate’s campaigns.
9.3 Notice of Breach. If VaBackup becomes aware of a breach of the terms of this Agreement, the Advertising Rules or the Campaign by Publisher or its Marketing Affiliate(s), Publisher will inform Publisher within twenty-four (24) hours of the breach and provide Publisher with detailed information of the breach and the corrective action taken to resolve the breach.
9.4 Termination for Cause. VaBackup may terminate this Agreement immediately if it learns of, or has reason to believe that, Publisher or its Marketing Affiliate(s) has breached any material provision or warranty in this Agreement or is in violation of the Campaign and/or Advertising Rules. After termination of this Agreement: 1) VaBackup shall incur no further liability or obligation to Publisher; 2) VaBackup may share all information about Publisher and its Marketing Affiliate(s) with any law enforcement agency, government agency, or individual or entity claiming to have been harmed by such breach; and 3) Publisher shall forfeit all unpaid Commission Distributions.
9.5 Notices. All notices shall be given to the appropriate party either in writing by a
nationally recognized overnight courier or by email with proof of transmission retained. If notice
is to Publisher, then to the address or email that Publisher provided in Publisher’s application. If
to VaBackup, then to VaBackup, attn.: VaBackup LLC, 51 west center st. #526,Orem,UT 84057 USA;
Section 10. Miscellaneous Provisions.
10.1 No Continuing Waiver. The failure of either party to insist upon or enforce performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
10.2 Force Majeure. Neither party shall be held responsible for any delay or failure in performance of this Agreement caused by fire, global health pandemic, hurricane, tornado, earthquake, tidal wave, meteor strikes, civil war, Internet brown-outs or black-outs, computer hacking, or acts of terrorists (“Force Majeure”) if the effects of such Force Majeure could not have been avoided through the application of reasonable foresight or diligent effort.
10.3 No Joint Venture. Nothing contained herein shall in any way be construed to interpret this Agreement as creating a partnership, joint venture, employment or franchise relationship between the Parties hereto. It is expressly agreed that the Parties are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed employees of the other for any purpose. This Agreement shall not be construed as authority
for either party to act for the other party in any agency or other capacity, or to make commitments
of any kind for the account of or on behalf of the other. In this regard, neither party shall hold itself
out contrary to the terms of this provision, and neither party shall become liable for the representation, act or omission of the other contrary to the provisions hereof.
10.4 Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Massachusetts. The Parties agree to submit to the exclusive jurisdiction of the federal or state courts of the State of Massachusetts located in Plymouth County for all disputes that arise under or relate to this Agreement.
10.5 Class Action Waiver. PUBLISHER AND VaBackup AGREE THAT EACH MAY
BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND
NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR
REPRESENTATIVE ACTION. Unless both Publisher and VaBackup agree, no arbitrator or judge
may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
10.6 Arbitration. VaBackup AND PUBLISHER UNDERSTAND AND AGREE THAT
ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN PUBLISHER AND VaBackup, ITS PARENTS, AFFILIATES, SUBSIDIARIES OR RELATED COMPANIES RELATING TO PUBLISHER’S USE OF OUR SERVICES, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with the American Arbitration Association Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All claims shall be heard by a single arbitrator and the arbitration shall be governed by the laws of the State of Massachusetts. The place of arbitration shall be Plymouth County, Massachusetts.
10.7 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO LITIGATION BASED UPON THIS AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE ADVERTISTING RULES, AND/OR THE CAMPGAIGN, OR ANY OTHER AGREEMENT CONTEMPLATED AND EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE DEALING, COURSE OF CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
10.8 Entire Agreement. This Agreement is the complete agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior agreements,
communications, and understandings (both written and oral) regarding such subject matter. The
terms and conditions of this Agreement will prevail over any contrary or inconsistent terms in any other writing. VaBackup may change the terms and conditions of this Agreement in the future. Unless this Agreement or applicable law specifies otherwise, VaBackup will give Publisher thirty (30) days prior notice of any significant change to this Agreement. If Publisher finds the change
unacceptable, Publisher has the right to cancel your Publisher Agreement. However, if you
continue to use VaBackup Network after the end of the notice period of the change, Publisher will be
considered to have accepted the changes. Publisher may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose.
APPENDIX A: ADVERTISING RULES
Section 1. Phone and Mobile Messaging Solicitation Obligations. For the purposes of
Advertising Rules “contact” means: (1) transmitting text messages (“texts”), or causing texts to be
transmitted; or (2) initiating telephone calls, or causing telephone calls to be initiated. All text
message and creative used by Publisher and Marketing Affiliate in its advertising must be provided by the Advertiser. If Publisher or its Marketing Affiliates wish to generate or use their own content or creative, they must notify VaBackup of the intent to do so and must obtain VaBackup’s express written consent and approval in advance.
Section 2. Trademarks: Publisher and Marketing Affiliate will not use any trademark, trade
name, logo, or other proprietary material of VaBackup except with the permission of VaBackup and
subject to any conditions that VaBackup may impose on such use. Publisher and Marketing Affiliate
agree to not misrepresent VaBackup or its products and services.
Section 3. Compliance Regarding Communications: Publisher and its Marketing Affiliate(s) shall conduct all calls, communications, e-mails, advertising, marketing, sales, and transmissions in strict compliance with all applicable laws, rules, and regulations, including but not limited to all laws, rules, and regulations governing: 1) the transmission of telephone calls; 2) the transmission of unsolicited commercial electronic mail messages or “spam” (this includes without limitation the Can-Spam Act of 2003); 3) email and Internet-based marketing (this includes without limitation the Telemarketing Sales Rules of the United States Federal Trade Commission); 4) marketing to minors; 4) the Telephone Consumer Protection Act; 5) the Fair Debt Collections Practices Act; and 6) the Fair Credit Reporting Act; and all other applicable laws related to prerecorded telephone and/or text messages and the use of automated dialing equipment.
Section 4. No Incentivized Lead Generation: Publisher and Marketing Affiliate shall not use
incentivized lead generation methods or techniques.
Section 5. When using email as a promotional method:
5.1 Accuracy of Headers. Emails must have accurate email header information
(including source, destination, and routing information) and accurate subject lines.
5.2 Email Requirements/Opt Out. Emails must include an identification that the message is an advertisement or solicitation; a functioning return email address or other Internet-based mechanism that a recipient may use to “opt-out” of receiving future messages; and a valid
physical postal address of VaBackup.
5.3 Email Addresses. Publisher and Marketing Affiliate must not send email messages
to an email address that has opted out. Publisher and Marketing Affiliate must not sell, lease,
exchange or otherwise transfer or release any such email address except as required by law;
5.4 Monitor Email. Publisher and Marketing Affiliate must enable VaBackup to monitor
email messages to ensure compliance with all applicable laws.
5.5 Email Restrictions.
(a) Publisher and Marketing Affiliate must not send email messages to email addresses that have been improperly obtained, including addresses harvested from the internet without consent and randomly generated addresses;
(b) Publisher and Marketing Affiliate must not send email messages from accounts obtained using scripts or other automated means of registering for multiple email accounts;
(c) Publisher and Marketing Affiliate must not use email accounts or domain names that were created using information that falsifies the identity of the registrant; and
(d) Publisher and Marketing Affiliate must not relay email messages through a computer or network without written permission.
Section 6. Publisher and Marketing Affiliates Requirements:
6.1 Consent. Publisher and Marketing Affiliates will obtain receiving party’s prior express written consent and Publisher and Marketing Affiliate shall keep records of consents in satisfaction of the Telephone Sales Rule (“TSR”), the Telephone Consumer Protection Act (“TCPA”), and of this Agreement.
6.2 Opt-In. Publisher and Marketing Affiliate will obtain such receiving party’s “optin” consent to receive, or Publisher and Marketing Affiliate has other legal basis to send such constituent text messages using automated dialing equipment.
6.3 Opt-Out. Publisher and Marketing Affiliate will provide receiving party with a simple mechanism for opting out or unsubscribing from receiving text messages including information on how to “opt-out” or unsubscribe.
6.4 Records. Publisher and Marketing Affiliate shall keep for at least 5 years records of all consents required under the TCPA and TSR, and all scripts used by telephone sales representatives under this Agreement. Publisher shall keep for at least 3 years all audio recordings of telephone calls placed by Publisher under this Agreement. Publisher must allow VaBackup to inspect these records, on reasonable notice and during regular business hours.
6.5 Monitor Calls. Publisher and Marketing Affiliate must enable VaBackup to monitor calls to ensure compliance with all applicable laws.
Section 7. Publisher and Marketing Affiliate Prohibitions.
7.1 The Publisher and Marketing Affiliate shall not:
(a) engage in offline marketing, including facsimile or telemarketing;
(b) engage in any deceptive or abusive telemarketing practices, as defined by
the Federal Trade Commission’s Telemarketing Sales Rule (16 CFR Part 310);
(c) use any automated system to contact any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or send texts to any service for which the receiving party is charged for a text;
(d) transmit text messages, or cause texts to be transmitted, without the prior express written consent of the receiving party to receive text messages specifically from the sender;
(e) contact any recipient outside of the hours established by then-current federal time-of-day requirements (16 CFR § 310.4(c)), currently between 8 a.m. and 9 p.m. local time of the recipient;
(f) contact any phone number on relevant suppression lists provided by VaBackup, populated either by specific requests for opt-outs or the national Do Not Call registry. Publisher
shall record any opt-out request it receives, scrub the requester’s contact information from its lists,
and refrain from contacting that individual’s phone number. It is Publisher’s responsibility to register for and obtain its own copy of Do Not Call lists from the Federal Trade Commission;
(g) use phone numbers that have been improperly obtained, including phone numbers harvested from the internet without consent and randomly generated phone numbers; and
(h) Publisher and Marketing Affiliate must not send email messages to an email address that has opted out. Publisher and Marketing Affiliate must not sell, lease, exchange or otherwise transfer or release any such email address except as required by law.
7.2 VaBackup may at any time audit the Publisher for compliance purposes. Publisher agrees to provide VaBackup with any reasonable information necessary to conduct an investigation into Publisher’s compliance with law and this Agreement and the Campaign.
Section 8. Endorsements: All advertising using endorsements must strictly comply with the
Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in
Advertising (16 CFR, Part 255, as amended).
Section 9. Use of Third-Party Intellectual Property: Publisher and Marketing Affiliate shall
not use any content that infringes upon the rights of third party, including copyright, trademark,
privacy, publicity or other personal or proprietary right.