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EvoMarketplace, Inc

Advertiser Terms And Conditions

Introduction.

EvoLeads provides you, as Advertiser, with the ability to post Ads (as defined below) for distribution through the EvoLeads Network, as defined herein, subject to your compliance with the terms and conditions of the Agreement. By enrolling as an advertiser, Advertiser, its agents, representatives, employees and any other person acting on its behalf with respect to the use of the EvoLeads Network, shall be bound by, and agrees to be bound by, the Agreement.

  1. EvoLeads Network.

    The EvoLeads Network is defined as EvoLeads’s branded websites, newsletters and various third party affiliates ("Publishers") that may be authorized by EvoLeads to post Ads on or through websites, newsletters and/or applications that they control. Publishers are paid a commission based on revenue generated from Advertiser’s campaign(s). The EvoLeads Network can be accessed at evoleads.com

  2. EvoLeads Services/Ads.

    As of the Effective Date, Advertiser agrees to accept and pay for, and EvoLeads agrees to provide, the services identified and set forth in the Agreement ("Services"). EvoLeads’s exclusive obligation is to distribute Ads provided by Advertiser within the EvoLeads Network, in accordance with the Agreement. Other than where the parties agree that EvoLeads shall contribute to the development of the Ads, Advertiser will, at its sole cost and expense, create and deliver all content required for any Ad to EvoLeads in the form requested by EvoLeads and in accordance with the specifications and policies set-forth by EvoLeads, prior to publication ("Advertiser Provided Ad"). The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Provided Ads; other than those portions that EvoLeads prepares on Advertiser’s behalf ("EvoLeads Assisted Ads" and together with the Advertiser Provided Ads the "Ads"). The parties understand and agree that EvoLeads is the sole owner of any and all intellectual property rights associated with the EvoLeads Assisted Ads, other than Advertiser’s trademarks, logos and other pre-existing Advertiser intellectual property incorporated in the EvoLeads Assisted Ads. EvoLeads will not be required to publish any Ad that is not in accordance with its policies or specifications. Notwithstanding the foregoing, EvoLeads’s policies, specifications and/or recommendations with respect to Ads (including the EvoLeads Assisted Ads) should not be construed as legal advice, or as sufficient guidelines to ensure that such Ads comply with applicable law. EvoLeads does not represent or warrant that the Ads (including the EvoLeads Assisted Ads), or such policies, specifications and/or recommendations associated with the Ads, are legally compliant or appropriate. EvoLeads assumes no obligation and hereby disclaims any liability for Advertiser’s use of and/or reliance upon the Ads (including the EvoLeads Assisted Ads) and any such policies, specifications and/or recommendations. Advertiser should consult with its legal counsel and/or other professional advisors before utilizing any Ads or acting on any policies, specifications and/or recommendations as provided by EvoLeads. EvoLeads reserves the right to demand third party verification for any claims made in any Ad and to terminate the Agreement in the event that such verification is not promptly provided or is unsatisfactory, in EvoLeads’s sole discretion. You are solely responsible for the content of your Ads. EvoLeads shall not be responsible for Advertiser’s website(s) including, but not limited to, content, maintenance of Advertiser’s website(s), order entry, customer service, payment processing, shipping, cancellations or returns. Advertiser warrants and represents that: (a) it has all right, title and interest in and to the Ads; (b) the use of the Ads by EvoLeads and its Publishers as contemplated and authorized hereunder will not infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; and (c) all Ads are in compliance with all laws, regulations and ordinances ("Laws") of the United States and any other jurisdiction in which Advertiser conducts its business.

    1. Distribution of Ads. Positioning of the Ads within the EvoLeads Network is at the sole discretion of EvoLeads and its Publishers. EvoLeads does not guarantee that your Ads will be available through any specific part of the EvoLeads Network, when your Ads will run and/or the placement and positioning of your Ads. EvoLeads reserves the right to approve, omit, edit or reject any Ad for any reason at any time, including the right to make minor changes to the Ads in order to optimize campaign results, with or without notice to the Advertiser. In addition, we reserve the right, at any time to remove any of your Ads if we determine, in our sole discretion, that the Ad or any portion thereof, violates any of our policies or may result in liability to us. In addition, EvoLeads shall have the absolute right to reject any URL link embodied within any Ad. EvoLeads’s failure to reject, cancel, approve, omit, edit or modify shall not be construed as an acceptance of an Ad, nor shall it negate other provisions of the Agreement, specifically with respect to liability.

    2. Exclusivity. If the "Exclusive" option has been selected on an IO, then EvoLeads shall be the exclusive publisher for that offer, and Advertiser shall not duplicate the offer for any other publisher other than the EvoLeads Network without EvoLeads’s prior written consent. In the event of any breach of this provision by Advertiser, EvoLeads shall be entitled to, in addition to all other rights and remedies that EvoLeads may have at law or in equity, an injunction (without the requirement to post a bond) enjoining and restraining Advertiser and/or all other persons involved therewith from continuing such breach for each applicable "Exclusive" offer. Advertiser acknowledges that any breach by Advertiser of this provision will result in irreparable injury to EvoLeads for which money damages could not adequately compensate EvoLeads.

  3. Terms of Payment.

    In consideration of the Services to be provided, Advertiser agrees to pay EvoLeads all applicable fees and charges in United States dollars, in accordance with the payment plan/program selected, and the applicable compensable events (each, an "Action"), which are defined and set forth below and for which both parties execute an IO. EvoLeads will submit an invoice to Advertiser either at the beginning of each month for fees and charges associated with the prior month’s Ad posting or when the Advertiser’s bill reaches eighty percent (80%) of its credit limit or at the occurrence of other credit issues (see section 7 below), whichever occurs earlier. Payments for invoices are due as specified in the IO and will be overdue if unpaid seven (7) calendar days from the due date on the invoice. Overdue invoices will accrue interest at the rate of Eighteen Percent (18%) per annum or the maximum amount permitted by law, whichever is less. All payments made under the Agreement shall be subject to any applicable taxes and EvoLeads set-up fees. Advertiser shall pay EvoLeads in accordance with one of the following three (3) payment plans/models, together with the applicable Action designated for each, as selected by Advertiser in each IO:

    1. Cost-Per-Click ("CPC"). A fee for all click-thrus on your Ads resulting from EvoLeads or Publisher efforts. Such fees will be based on the number of click-thrus on all of your Ads, multiplied by the cost of each click-thru, which shall be computed according to our rules and pricing applicable to the program that you selected on each IO. A click-thru is defined as an occasion in which a person on the Internet clicks on your Ad directing him/her to your landing page or website.

    2. Cost-Per-Action ("CPA") or Cost-Per-Lead (‘CPL"). A fee for leads or sales delivered by EvoLeads or an Publisher. Such fees will be based on the number of leads or sales received from all of your Ads, multiplied by the applicable CPA/CPL rate, which shall be computed according to our rules and pricing applicable to the program that you selected on each IO. For all leads and sales programs (CPA/CPL), you agree to provide on or before the fifth (5th) day of each month, the total number of leads or sales generated by EvoLeads and its Publishers in the previous month. EvoLeads will invoice you and you agree to pay based on the higher of your numbers or EvoLeads’s numbers. Leads or sales are defined as Internet users interested in your Ad or offer who have clicked-thru to your landing page or website, and have signed up for, or purchased, as applicable, your service or product as determined by the firing of the pixel. Advertiser agrees that at all times during the term of the Agreement it shall maintain accurate books and records relating to the number of leads received and any payments due EvoLeads derived therefrom ("Records"). Advertiser agrees that EvoLeads shall have the right following the Effective Date, at EvoLeads’s sole cost and expense, to inspect, audit and copy ("Audit") all such Records during normal business hours upon ten (10) business days prior written notice to Advertiser. Such Audit shall be strictly limited to the Records and any source documents used in the preparation thereof. In the event that such Audit uncovers improper use of Unaccepted Leads (as defined below) or an underpayment to EvoLeads by Advertiser of greater than five percent (5%) for any billing period, Advertiser shall remit any underpayment with interest to EvoLeads within thirty (30) days and such Audit shall be at Advertiser’s sole cost and expense. Any and all leads that are not both accepted and paid for by Advertiser shall be deemed the sole property and Confidential Information of EvoLeads ("Unaccepted Leads"). Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it: (i) will not transfer, display or otherwise share information contained in the Unaccepted Leads with any third party; (ii) will not use the information contained in the Unaccepted Leads on its own behalf in any manner not expressly authorized by EvoLeads; and (iii) will notify EvoLeads as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Leads and provide reasonable assistance to EvoLeads in the investigation and prosecution of any such unauthorized use or disclosure. Both parties agree and acknowledge that if Advertiser violates its obligations associated with the Unaccepted Leads, EvoLeads will suffer irreparable injury that cannot be adequately compensated in monetary damages. As such, in the event of a violation of this section, the parties agree that EvoLeads shall be entitled to: (A) injunctive relief without the requirement to post a bond; and (B) any other remedies that EvoLeads may be entitled to at law or in equity. Notwithstanding the foregoing, nothing herein will prohibit Advertiser from using information that may be similar or identical to information in an Unaccepted Lead if it is provided to Advertiser from a source other than EvoLeads.

    3. Cost-Per-Thousand ("CPM"). A fee for each time that your Ad is delivered to an end-user. Such fees will be based on the number of times that your Ad has been delivered, multiplied by the cost per thousand impressions, which shall be computed according to our rules and pricing applicable to the program that you selected in the IO. Impressions are defined as unique deliveries of your Ad to end-users.

  4. Method of Payment.

    Advertiser shall pay EvoLeads by check, credit card, or bank wire transfer. You may be required to make an advance payment to setup your account ("Deposit"). You understand and agree that when you make such a Deposit, you are committing to the purchase of Services from EvoLeads. At the end of each month or earlier (agreed upon amounts and billing schedule shown in the IO), EvoLeads will submit an invoice that will cover the total fees incurred during the previous month less any monies on Deposit. You agree to pay the invoice as per terms stated on the IO, for all impressions, click throughs, leads, sales, downloads, signups (units) designated by this agreement or an applicable IO. EvoLeads reserves the right to either suspend or terminate your Advertiser Account with EvoLeads, or remove your Ads from the EvoLeads Network, if the credit limit assigned to you by EvoLeads is exceeded, if any payment is overdue or cannot be processed by the due date, if there is a charge-back and/or where you are in breach of the Agreement, as determined in EvoLeads’s sole discretion.

  5. Guaranty.

    For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and to induce EvoLeads to execute the Agreement with Advertiser and to otherwise extend credit and engage in any and all transactions with Advertiser, the undersigned Guarantor individually promises to pay and guarantees the full and prompt payment of Advertiser’s invoices and other amounts due including, without limitation, all outstanding principal, accrued interest, attorneys’ fees and collection costs incurred by EvoLeads. Guarantor agrees to personally guarantee the obligations of Advertiser.

  6. Credit.

    In connection with being approved as a EvoLeads Advertiser, Advertiser may be required to complete a credit application. Advertiser agrees that EvoLeads shall review Advertiser’s credit status, perform a credit analysis and establish, at EvoLeads’s sole discretion, a reasonable credit limit for Advertiser. Advertiser shall be deemed to have breached the Agreement each time that Advertiser exceeds this established credit limit. EvoLeads reserves the right to monitor the number of Actions that are generated pursuant to each campaign/IO on a daily, weekly and/or monthly basis, as determined by EvoLeads in its sole discretion. If, in EvoLeads’s sole determination, the projected fees payable by Advertiser for any calendar month during the term of an IO are targeted to exceed the prepaid amount previously provided by Advertiser (if any), the credit limit established for the applicable IO and/or campaign, or Two Hundred Thousand Dollars ($200,000.00), whichever is less, then EvoLeads may, in its sole discretion, take any one or more of the following actions at any time: (a) downwardly adjust the credit limit; (b) require a larger prepaid amount; (c) increase the frequency of invoices to daily, weekly or bi-weekly, as applicable: (c) require that Advertiser secure any current and/or future payment obligations through the issuance of promissory notes, establishment of joint accounts and/or collateralization of receivables, real property and/or other assets; (d) suspend the placement of Ads in the Network until the payment terms have been revised to EvoLeads’s satisfaction; (e) cap the number of Actions generated by the Ad; and (e) otherwise modify the payments terms under the Agreement.

  7. Rates.

    Pricing for EvoLeads’s programs, payment plan terms, set-up fees, minimum costs and minimum bids are subject to change by EvoLeads from time-to-time upon written notice to you.

  8. Initial Payment.

    The IO is a reference to the initial buy, but you are indefinitely responsible for payment at the rate agreed upon in the IO. If you do not cancel the campaign in writing after the initial IO amount has been exceeded, your IO automatically renews for an indefinite period until it is terminated according to the procedures outlined in the Agreement. If you do cancel, you need to allow five (5) business days for the applicable campaign to become inactive across the EvoLeads Network, and during the five (5) days you are still responsible for the payouts for actions generated at the rate specified in the IO.

  9. Claims or Disputes.

    Advertiser’s sole remedy for claims or disputes is to submit any claims or disputes that it may have with respect to any invoice or transaction in writing to EvoLeads within ten (10) days after month’s end or seven (7) days after the invoice date, whichever is earlier; otherwise such claim or dispute will be waived and such charge will be final and not subject to dispute.

  10. Failure to Make Payment.

    The failure by Advertiser to make timely payment in accordance with the terms of the Agreement shall constitute a material breach of the Agreement. In addition, a charge-back shall also constitute a material breach of the Agreement. You will be responsible for all reasonable expenses (including, but not limited to, attorneys' fees and costs) incurred by EvoLeads in collecting such amounts due plus interest at the rate of eighteen percent (18%) per annum or the maximum amount permitted by law, whichever is less.

  11. Tracking System.

    You agree that you will not alter the pixel or remove or alter the location of the pixel or other tracking method deployed by EvoLeads ("Pixel") to track leads. EvoLeads employs a testing system to ensure that you have not altered, removed or moved the Pixel. If you alter, remove, disable or move the Pixel thereby disrupting or disabling EvoLeads’s tracking system, you will be obligated to pay EvoLeads for all estimated Actions generated during this period based upon the historical EPC over the previous month for the period in which such Pixel was altered, disabled, displaced or removed. For purposes of the Agreement, EPC is defined as earnings per click, computed by dividing total earnings by the number of clicks generated by a campaign. In addition, you agree to place EvoLeads’s Pixel on a unique confirmation page that does not contain the pixel or tracking method of any third party. If you place EvoLeads’s Pixel on the same page as third party’s pixel or tracking method, you will be obligated to pay EvoLeads based upon each firing of the EvoLeads Pixel (based upon EvoLeads’s tracking logs) regardless of any payment made to any third party for the subject action in reliance on any other pixel and/or tracking method appearing on the same page.

  12. Fraud.

    Advertiser acknowledges that there is a potential for Network fraud. EvoLeads enforces strict processes to combat fraud; however without definitive proof of fraud as determined by EvoLeads, Advertiser agrees to pay EvoLeads in full for all services performed under the Agreement, notwithstanding any potential or actual fraud committed by third parties.

  13. Non-Circumvent.

    Advertiser recognizes that EvoLeads has proprietary relationships with EvoLeads Network Publishers. Advertiser agrees not to circumvent EvoLeads’s relationship with such Publishers, or otherwise obtain, directly or indirectly, services similar to those performed by EvoLeads or such Publishers hereunder, from any Publisher that is known, or should reasonably be known, by Advertiser to have such a relationship with EvoLeads, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Advertiser further agrees not to use reverse engineering or tracing of Publisher traffic as a means to solicit Publishers in the EvoLeads Network. If you are participating in the Select Advertiser program (as specified on the applicable IO), you agree not to contact the list of Publishers that we make available to you. Failure to comply with this Section may, at our discretion and without limiting or excluding other remedies that may be available to EvoLeads (all such other remedies being expressly reserved), result in immediate termination of the Agreement and a fee, to be determined by EvoLeads, per Publisher contacted directly by you. Both parties agree and acknowledge that if Advertiser violates its obligations associated with this Section, EvoLeads will suffer irreparable injury that cannot be adequately compensated in monetary damages. As such, in the event of a violation of this Section, the parties agree that EvoLeads shall be entitled to: (i) injunctive relief without the requirement to post a bond; and (ii) any other remedies that EvoLeads may be entitled to at law or in equity. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publisher already obtained such services from Advertiser prior to the Effective Date of these Terms and Conditions, then Advertiser shall not be prohibited from continuing such relationship.

  14. Confidentiality.

    Any confidential information and/or proprietary data provided by one party ("Discloser") to the other party ("Recipient"), including the Ad descriptions and the pricing of the Ad, shall be deemed "Confidential Information" of the Discloser. Confidential Information shall not be released by the Recipient to anyone except an employee or agent that has a need to know same and that is bound by confidentiality obligations at least as strict as those contained herein, but in no event less than a reasonable confidentiality standard. Recipient shall not use any portion of Confidential Information provided by the Discloser for any purpose other than those provided for under the Agreement. Notwithstanding anything contained herein to the contrary, the term "Confidential Information" shall not include information that: (a) was previously known to the Recipient; (b) was or becomes generally available to the public through no fault of the Recipient; (c) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by Discloser; or (d) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser. Notwithstanding the foregoing, either party may disclose, upon written notice to the other party, Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under the Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.

  15. License.

    For the term of the Agreement, Advertiser hereby grants to EvoLeads and EvoLeads’s Publishers and partners a non-exclusive, royalty-free, worldwide license to: (a) use, perform and display all Ads delivered hereunder in accordance with the terms of the Agreement; and (b) use all associated Advertiser intellectual property in connection therewith. Title to and ownership of all intellectual property rights of all Ads and associated Advertiser intellectual property shall remain with Advertiser or its third party licensors. In addition, Advertiser agrees that EvoLeads may, during the term of the Agreement and thereafter, include Advertiser's name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on EvoLeads's customer list and in its marketing materials and sales presentations.

  16. Representations.

    Each party represents and warrants to the other party that:
    (a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder;
    (b) the execution of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and
    (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms.

  17. Disclaimer of Warranties.

    THE EVOLEADS NETWORK, EVOLEADS ASSISTED ADS, SERVICES AND THE RESULTS GENERATED THEREFROM ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD OR EVOLEADS ASSISTED AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD OR EVOLEADS ASSISTED AD, EVOLEADS’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. EXCEPT AS STATED HEREIN, EVOLEADS DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

  18. Limitation of Liability.

    Other than for gross negligence and willful misconduct, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever including, without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of the Agreement, even if such party has been advised of the possibility of such damages.

  19. Indemnification.

    Advertiser agrees to defend, indemnify and hold harmless EvoLeads and its Publishers and their respective directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively "Losses") incurred as a result of any claim, judgment or proceeding relating to or arising out of:
    (a) Advertiser’s breach of the Agreement; (b) the content of the Ads (including the EvoLeads Assisted Ads) and any and all claims made therein; or
    (c) the products, services or content linked to from the Ads (including the EvoLeads Assisted Ads). EvoLeads agrees to defend, indemnify and hold harmless Advertiser from and against any and all Losses incurred as a result of a claim, judgment or proceeding relating to or arising out of EvoLeads’s breach of the Agreement. If any action is brought against either party (the "Indemnified Party") in respect to any allegation for which indemnity may be sought from the other party ("Indemnifying Party"), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will:
    (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and
    (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.

  20. Termination.

    In addition to any other remedies that may be available to it, EvoLeads may immediately terminate the IO in the event of any breach by Advertiser of the Agreement. Either party may cancel any IO, for any reason, on five (5) business days prior written notice to the other party. Sections 1, 3-24, and any accrued but unpaid payment obligations, shall survive termination of the Agreement. In the event of termination, Advertiser shall allow five (5) business days for the campaigns to become inactive across the EvoLeads Network, and the Advertiser will be responsible for actions that result from Ads published during those five (5) days.

  21. Scope of Relationship.

    Each party is an independent contractor and not a partner, joint venturer or employee of the other. Neither party shall have the right to bind the other or to incur any obligation on the other’s behalf.

  22. Miscellaneous.

    This Agreement is governed by the laws of the Province of Montreal (Canada), except for its conflict of law provisions. The exclusive forum for any actions related to this Agreement shall be in the province courts, and, to the extent that federal courts have exclusive jurisdiction, in Montreal, Quebec. The parties consent to such venue and jurisdiction and waive any right to a trial by jury. The application of the United Nations Convention on the International Sale of Goods is expressly excluded. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys fees and costs. EvoLeads controls and operates its Web site from its offices in the Canada and access or use where illegal is prohibited.

  23. Other Agreements.

    The Agreement sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a writing signed by both parties may change, modify or amend the terms of the Agreement, except for any modifications by EvoLeads as per the applicable IO.

The parties declare that they have requested and hereby confirm their request that the present agreement be drafted in the English language; les parties déclarent et par les présentes confirment leur demande à l’effet que le présent document soit rédigé en langue anglaise.