AGREEMENT (this “Agreement”) is effective today between EvoMarketplace, Inc, a Montreal, Quebec, an incorporated company, having offices at 3680 Du Musee, Montreal, Quebec and the parties listed below (“Publisher and/or Advertiser”).
WHEREAS, EvoLeads wishes to engage Publisher, Network and/or Advertiser to perform the Sales and Marketing Services, and EvoLeads wishes to accept such engagement, upon the terms and subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants and conditions contained herein the parties, intending to be legally bound, agree as follows:
(a) Program Description. EvoLeads is an application service provider and as such, provides services through the Internet (“Network Services”) which are used for by Publisher for marketing programs (“Marketing Program”) that promote EvoLeads’s platform. Publisher will use entire web-sites, portions of web-sites or other promotional methods to “drive sales traffic” to another entity’s (“Advertiser”) Web site or Web site content for Advertiser’s products (“Advertiser’s Programs”). Publisher may earn compensation (“Payments”) under this Agreement for various actions (“Transactions”) taken by site visitors (“Customers”) through an internet connection (“Link”) to a Web site or to Web site content that is operated by Advertiser. Advertiser will define the types of Transactions taken by Customers for which Publisher will be compensated. A Customer may not be Publisher, any officers or employees of Publisher, or Publisher’s agent unless specifically agreed to by Advertiser. An agent is anyone who follows Publisher’s directions or takes specific action reasonably knowing that such action will benefit Publisher. Payment of compensation by Publisher to any person based on that person’s visitation to a Web Site or to Web site content will be evidence of “agent” status but agent status may also be determined based on legal and familial relationships. Advertiser will specify the type of marketing and promotional method that is to be used by Publisher to drive sales traffic. Publisher’s compensation is paid in accordance with this Agreement.
(b) Acceptance by Advertiser. During this Agreement, Publisher may apply to Advertiser to become part of and to promote Advertiser’s Programs and earn Payments in accordance with Advertiser’s Program terms and in compliance with this Agreement. Advertiser’s approval is not guaranteed and is in Advertiser’s sole discretion. Upon approval by Advertiser for acceptance into its Program, Publisher may display (and remove) Links to Advertiser’s Web site or Web site content in accordance with the Advertiser’s Program terms and this Agreement. An Advertiser’s acceptance of Publisher is only applicable to the entity, or individual, that enters into this Agreement with EvoLeads as an Publisher.
(c) Program Terms. The details of an Advertiser's Program shall be available through EvoLead’s Network Service. The Advertiser will define the Transactions that qualify for a Payment through EvoLead’s Network Service. Advertisers may change the conditions that qualify for a Payment and the Payment rate upon no less than 7 days written notice through the EvoLead’s Network Service with effect from the 8th day (or such later date as specified by Advertiser).
(a) Application Submission Requirements. To begin the enrollment process, you must submit a complete and accurate Application via the Site. To join the EvoLeads publisher tracking platform (“EvoLeads Platform”) as a Network Operator, you must be an entity or an individual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the EvoLeads Platform. EvoLeads will evaluate your Application and promptly notify you of your Application acceptance or rejection via the email address that you supplied with your Application. If any of the information supplied as part of your Application changes, at any time, you must immediately inform EvoLeads of same to reflect such changes in your Network Operator profile.
(b) Effective Date. You accept the terms and conditions contained in this Agreement by completing the Application and clicking “Create Account.” The Agreement is effective as of the date that Network Operator submits the Application (the “Effective Date”), provided that EvoLeads does not reject the Application. EvoLeads may reject your Application in its sole discretion.
(c) EvoLeads does not represent or warrant that the information posted in the EvoLeads Platform is accurate, complete or appropriate. You understand and agree that EvoLeads is not responsible or liable in any manner whatsoever for your inability to use the EvoLeads Platform. You understand and agree that EvoLeads shall not be liable to you or any third party for any claim in connection with your use of the EvoLeads Platform.
(d) You agree not to access (or attempt to access) the EvoLeads Platform by any means other than through the interface that is provided by EvoLeads, unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and EvoLeads. You specifically agree not to access (or attempt to access) the EvoLeads Platform through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any robots.txt file present on the EvoLeads Platform.
(e) You agree that you shall not engage in any activity that interferes with or disrupts the EvoLeads Platform (or the servers and networks which are connected to the EvoLeads Platform).
(f) Unless you have been specifically authorized to do so pursuant to a separate written and duly executed agreement between you and EvoLeads, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the EvoLeads Platform or any element of the custom network interface website generated through use of the EvoLeads Platform (“Custom Network”) for any purpose whatsoever. The rights and services which are the subject matter of these Sections (d) – (g) and 8, below, are of a special, unique, extraordinary and intellectual character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated in damages in an action at law and which would cause EvoLeads great irreparable injury and damage. Accordingly, EvoLeads shall be entitled to injunctive relief, specific performance and other equitable relief to preserve its rights and interest in and to such rights and services as set forth herein. This provision shall not, however, be construed as a waiver of any rights EvoLeads may have for any and all damages as set forth under this Agreement as well as those provided for by all applicable federal and province law.
(g) You agree that you are solely responsible for (and that EvoLeads has no responsibility to you or to any third party for) any breach of your obligations under the Agreement and for the consequences (including any loss or damage which EvoLeads may suffer) of any such breach.
To ensure the optimal level of protection for your confidential and/or proprietary information you agree to take proactive measures to restrict access to your computer, the computers of your respective officers, agents, employees and any other individuals who may have or may gain access to your account and password. As such, you hereby agree to assume sole responsibility for maintaining the confidentiality of your account and password and for restricting access to your computer and the computers of your respective officers, agents, employees and any other individuals who may have or may gain access to your account and password. As such, you hereby agree to assume sole responsibility for all activities that occur under your account or via use of your password. If you become aware of any unauthorized use of your password or of your account, you agree to notify EvoLeads immediately.
(a) EvoLeads grants to Network Operator a non-exclusive, non-transferable, revocable and limited license to use the EvoLeads Platform for a fee, if applicable, as set forth herein below, in accordance with the terms of the Agreement. The EvoLeads Platform enables interested publisher network operators to: (a) attract and register third party publishers (“Publishers”) that may then access advertiser-provided advertisements (“Ads”) on the applicable Custom Network;
(b) attract and register third-party advertising partners (“Advertisers”) that may then make their Ads available to Publishers on the applicable Custom Network; and (c) manage all aspects of the Custom Network including, without limitation, calculating commissions, tracking sales or other compensable actions, making payments and establishing rules for campaigns and (d) serve Ads and/or any media files including, but not limited to videos, images, flash banners, and html files on the EvoLeads Platform.
(c) Individuals/entities who purchase any product and/or service (collectively, “Custom Network Products”) made available through your Custom Network or who perform any other transaction through your Custom Network (“Custom Network Customers”) shall not be deemed to be the customers of EvoLeads. Publishers and Advertisers that enroll in Network Operator’s Custom Network shall not be deemed to be the customers, clients or business associates of EvoLeads. EvoLeads has no liability or responsibility to review, endorse, police or enforce any such relationship(s) between Network Operator and its Custom Network Customers, Advertisers or Publishers. EvoLeads shall have no obligation to resolve any dispute between Network Operator and its Custom Network Customers, Advertisers or Publishers. Network Operator expressly agrees to indemnify and hold EvoLeads, its parents, publishers and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/ or settlement costs) arising from any dispute between Network Operator and its Custom Network Customers, Advertisers or Publishers.
(d) EvoLeads may use the personal information of a Network Operator in any manner consistent with the Privacy Policy. For additional information regarding EvoLeads collection and use of information, please refer to the Privacy Policy.
(a) Your Custom Network shall contain Ads made available by your registered Advertisers. As a Network Operator, you agree that you are solely responsible for the Ads that you and/or your Advertisers publish, transmit and/or post by and through the EvoLeads Platform. You agree, and shall require that your Advertisers and Publishers agree in writing, to use the EvoLeads Platform in a manner consistent with any and all applicable laws and regulations. In connection with the Ads that you and/or your Advertisers post on the EvoLeads Platform, you agree not to: (a) display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (b) display any audio files, text, photographs, videos or other images containing confidential information; (c) display any audio files, text, photographs, videos or other images that may be deemed obscene in your community, as defined under applicable law; (d) impersonate any person or entity; (e) “stalk” or otherwise harass any person; (f) transmit any chain letters, spam or junk e-mail; (f) express or imply that any statements or Ads are endorsed by EvoLeads, without our specific prior written consent; (g) harvest or collect personal information from end-users, whether or not for commercial purposes, without their express advance consent and in conformance with all applicable laws; (h) post, distribute or reproduce in any way any copyrighted material, trademarks or other proprietary information without obtaining the prior consent of the owner of such proprietary rights; (i) remove any copyright, trademark or other proprietary rights notices; (j) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (k) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party, including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. “spamware”), services that send unsolicited advertisements, programs designed to initiate “denial of service” attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (l) post Ads that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable and/or (m) post Ads that do not fully comply with all applicable local, province and federal laws, rules and regulations. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of the Agreement and may result in the immediate Termination of this Agreement and your Custom Network without notice, in the sole discretion of EvoLeads. EvoLeads reserves the right to pursue any and all legal remedies against Network Operators that engage in the aforementioned prohibited conduct. If we receive reports from our upstream service provider that you, your Publishers, or Advertisers are transmitting chain letters, spam or junk-email, or conducting any other form of abuse, and you are unable to provide valid opt-in information, you will be subject to a one thousand dollar ($1,000.00) fine for each occurrence and EvoLeads reserves the right to automatically disable the tracking link for the publisher and Ad.
(b) Without limiting the foregoing, EvoLeads may Terminate and/or suspend any Ads at any time and for any reason, in EvoLead’s sole discretion. Network Operator must immediately remove such Ads after any such suspension or Termination, as applicable.
(c) Notwithstanding the foregoing, EvoLeads undertakes no responsibility to monitor or otherwise police: (a) the Ads posted by you and/or your Advertisers on the EvoLeads Platform; (b) the website (“Advertiser Website”) linked to from the Ad; (c) the websites of your Publishers (“Publisher Websites”); and/or (d) any of the products and/or services offered on such Advertiser Websites and/or Publisher Websites including, without limitation, the applicable Custom Network Products. You agree that EvoLeads shall have no obligations and incur no liabilities to you in connection with any such Ads, Advertiser Websites or Publisher Websites.
EvoLeads reserves the right to prohibit the marketing of any Custom Network Products at any time and for any reason, in EvoLeads sole discretion. Network Operator must immediately cease marketing such Custom Network Products after receipt of notice of any such prohibition.
EvoLeads operates the EvoLeads Platform as a neutral host, and EvoLeads does not regularly monitor, regulate or police the use of the EvoLeads Platform by any of its participants. The participation in the EvoLeads™ Platform by a Network Operator, Publisher, Advertiser, Custom Network Customer or otherwise does not constitute an endorsement by EvoLeads of that Network Operator, Publisher, Advertiser, Custom Network Customer or other third party. EvoLeads is not responsible or liable for the acts, omissions, agreements, promises, Ads, Custom Network Products, Publisher Websites, Advertiser Websites, other products, services, comments, opinions, advice, statements, offers and other information of any Network Operator, Publisher, Advertiser, Custom Network Customer or other third party using the EvoLeads Platform.
(a) Network Operator grants to EvoLeads a royalty free, worldwide license (“Network
Operator License”) to: (a) display on, and distribute through, the EvoLeads Platform, Site and
in related marketing material produced and distributed by EvoLeads, the Ads and any other
information posted in the EvoLeads Platform or otherwise made available by Network Operator,
its Advertisers and/or Publishers by and through Network Operator’s Custom Network. The
Network Operator License shall last for the duration of the Agreement.
(b) EvoLeads grants to Network Operator a limited, revocable, non-transferable license to use
the EvoLeads Platform solely and exclusively as contemplated by the Agreement (“EvoLeads
License”).
(c) The content, organization, graphics, design, compilation, magnetic translation, digital
conversion, software, and other matters related to the EvoLeads Platform, (and any products
or services that EvoLeads does now or at any time in the future may make available to you),
is protected under applicable copyright, trademark and other proprietary (including, without
limitation, intellectual property) rights. The use, copying, redistribution and/or publication by
Network Operator of any part of the EvoLeads Platform, other than as contemplated hereunder,
is strictly prohibited.
(d) Network Operator agrees that its use of the EvoLeads Platform, any EvoLeads logos,
trademarks, Transaction Tracking Codes (as defined below) and other material made available
by and through the EvoLeads Platform is subject to the EvoLeads License granted hereunder.
(e) Network Operator does not acquire any ownership rights to the EvoLeads Platform or any
material made available by and through the EvoLeads Platform. The availability of the EvoLeads
Platform, and the associated material, does not constitute a waiver of any rights related thereto.
(a) The services under this agreement are provided by EvoLeads to Network Operator on a
month-to month basis, and as such each of the Parties, may, in its sole discretion, terminate
the Agreement (and thereby the services) at any time, with or without cause, upon thirty
(30) days prior written notice to the other party (“Terminat(ion)”). EvoLeads may suspend
(“Suspend(tion”) Network Operator’s services at any time, without advance notice, for any
reason that it finds valid in its sole discretion until cured, including but not limited to where EvoLeads
believes that: (a) you are in any way in breach of the Agreement; (b) any Ads or Custom
Network Products are unsuitable for the EvoLeads Platform for any reason including, without
limitation, that the Ads contain, or link to, or that the Custom Network Products consist of,
material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing
or otherwise objectionable; (c) you or your Advertisers, at any time, are conducting commercial
activities that do not fully comply with all applicable local, province, federal and foreign laws,
rules and regulations; and (d) you fail to pay any of the fees herein within seven (7) days of
receipt of invoice.
(b) Network Operator may Suspend or remove any Ads, Publishers and/or Advertisers at any
time with or without notice.
(c) If Network Operator’s participation in the EvoLeads Platform Terminates or EvoLeads
Suspends such participation for any reason, EvoLeads may, with or without notice remove all
Ads and cancel any Custom Network activity immediately or, in EvoLeads discretion, at any
time thereafter.
(d) Upon any Termination or Suspension of the Agreement and/or Network Operator’s
participation in the EvoLeads Platform: (a) the EvoLeads License and any and all other
licenses and rights granted to Network Operator in connection with the Agreement shall
immediately expire; and (b) any and all confidential or proprietary information of EvoLeads
that is in Network Operator’s possession or control must be immediately returned or destroyed.
If requested, Network Operator will certify in a writing signed by Network Operator or an
authorized officer of Network Operator that all such confidential and/or proprietary information
has been returned or destroyed.
(e) If EvoLeads Terminates Network Operator’s services for breach of the Agreement, including
for non-payment: (i) Network Operator shall not be eligible to enter into a new Network
Operator Agreement with EvoLeads, or any other agreement for other EvoLeads products
and/or services, and any attempt to do so shall be null and void; and (ii) Except where such
action would violate any applicable law, EvoLeads reserve the right to sell Network Operator’s
personally identifiable information, but specifically excluding sensitive information, to Network
Operator’s Advertisers and Publishers or to any debt collection company in an effort to recoup
any outstanding balances. EvoLeads may use Network Operators data in the process to sell the
data. Any profit gained in such a transaction will be realized by EvoLeads only.
(a) Accurate, Up-to-Date Information. Publisher agrees to provide EvoLeads and Advertiser
with accurate information about Publisher and Publisher’s promotional methods, and to maintain
up-to-date “Account” information (such as contact information and Web sites used). In
Publisher’s Account, Publisher must accurately, clearly and completely describe all promotional
methods by selecting the appropriate descriptions and providing additional information when
necessary. Some promotional methods will be designated by the system as “special.” Special
programs are linked to promotional methods and practices considered unique and require manual
approval and acceptance by the Advertiser. EvoLeads reserves the right to define any program
as special.
(b) Updating Links. If Links to Advertiser are not dynamically updated through the Network
Service, upon notification by Advertising or EvoLeads, Publisher is obligated to update the
Advertiser's Links in order to earn Payments.
(c) Applicable Codes and Code Maintenance. In order for EvoLeads to record the tracking
of Customer’s' Transactions resulting from clicks on Links to Advertisers promoted by Publisher,
Publisher must include and maintain a EvoLeads “Tracking Code” within the Advertiser's Links.
All Advertiser Links and all advertisements ("Ad Content") must be in a Network Service
compatible format.
(d) Usage and Security of Account. Publisher is responsible for all usage and activity on
Publisher’s account and for loss, theft, or unauthorized disclosure of Publisher’s password (other
than through EvoLead's negligent or willful conduct or omission). Publisher shall provide EvoLeads
with prompt written notification of any known or suspected unauthorized use of Publisher’s
Account or breach of the security of Publisher’s Account.
(e) Privacy. Publisher must conspicuously post Publisher’s privacy policy on Publisher’s
Web site and otherwise make it available to all Customers. Publisher’s privacy policy must
comply with all laws and regulations regarding the privacy of Customer information, be
commercially reasonable, and fully and accurately disclose Publisher’s collection and use of
Customer information. Publisher must fully and accurately disclose Publisher’s use of third
party technology, including EvoLead's tracking technology, use of cookies and options for
discontinuing use of such cookies.
(a) Right to Reject Advertisement; Positioning. All contents of advertisements are subject
to EvoLeads and Advertiser’s approval and may deem Publisher’s promotional activities
inappropriate and a material breach of this Agreement in EvoLead’s sole discretion. EvoLeads
and Advertiser reserve the right to reject or cancel any advertisement, URL link, space
reservation or position commitment, at any time, for any reason whatsoever (including belief
by EvoLeads or Advertiser that any placement thereof may subject EvoLeads or Advertiser to
criminal or civil liability. Advertising that violated EvoLeads policy or Advertiser’s policy is
grounds for termination of this Agreement as further described below.
(b) Additional Contractual Relationships. Publisher and EvoLead’s Advertisers may enter
into direct contractual relationships. These relationships may be established either in the
form of an offer made to Publisher by Advertiser through an area established by EvoLeads for
members on the Network Service (“Offer”) or through an “apply to join process” in the form of
a click-through agreement hosted by EvoLeads (“Click-through Agreement”). It is Publisher’s
obligation to review and accept or decline the Offer or the Click-through Agreement when
such is presented to Publisher. If accepted by Publisher, compliance with the Offer or Clickthrough Agreement is solely Publisher’s responsibility. The terms and conditions of the Offer or
Click-through Agreement may supersede or conflict with this Agreement and shall apply only
with respect to Publisher’s relationship with that particular Advertiser. Publisher may enforce
or terminate the Offer or Click-through Agreement according to the terms of such Offer or
Click-through Agreement without consulting EvoLeads. Publisher’s actions under the Offer or
Click-through Agreement that lead to termination will qualify as grounds for termination of this
Agreement.
(a) Locations. If Publisher uses IRC channels, instant messages, or similar Internet resources,
then Publisher must designate their program as special requiring manual review and acceptance
by the Advertiser in Advertiser’s sole discretion. Publisher may not place Links to an
Advertiser's Web site or Web site content in third party newsgroups, message boards, blogs,
unsolicited email, and other types of spam, link farms, counters, chatrooms, or guestbooks.
(b) Improper Transactions. Publisher must promote Advertiser in such a manner and using
such procedures that Publisher do not mislead the Customer, and such that the Links deliver bona
fide Transactions by the Customer to Advertiser from the Link. Publisher shall not cause any
Transactions to be made that are not in good faith or are misleading, including, but not limited to,
using any device, program, robot, Iframes, or hidden frames. Publisher will not be compensated
for Transactions where Publisher or Publisher’s agent is the Customer unless specifically agreed to
by Advertiser before the Transaction occurs. Multiple Leads from the same individual, entity or
IP address may be considered non-bona fide Transactions. Publisher shall not earn Payments for
non-bona fide Transactions.
(c) Infringement. None of Publisher’s promotional activities may infringe an Advertiser's
proprietary rights (including but not limited to trademark rights), EvoLead’s proprietary rights,
or a third party's proprietary rights.
(d) Emails. Publisher hereby understands, acknowledges, and accepts that EvoLeads, EvoLeads
systems, EvoLeads partners' systems, and/or third party systems may and has/have the
right granted by Publisher to send emails and other communications to Publisher on behalf of EvoLeads,
Advertisers, and other EvoLeads partners and publishers, including solicitation and service
solicitation emails. Publisher may have the ability to change some of Publisher’s email settings
and preferences.
(e) Promotional Materials and Use of Links. Publisher represents and warrants that all
promotional means used by Publisher will not contain objectionable content (including but not
limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hateoriented, illegal, and/or promoting illegal goods, services or activities), and that Publisher will not
mislead others. Publisher agree to: (i) use ethical and legal business practices, (ii) comply with
the Advertisers' Program terms and this Agreement, (iii) maintain a privacy policy on Publisher’s
Web site and for any non-Web site based promotional method made available to Customers, and
(iv) designate Publisher’s Publisher Account as “special” if Publisher promotes an Advertiser(s) by
any means other than displaying a Link to the Advertiser on Publisher’s Web site.
(f) Compliance with Laws Including CAN SPAM. Publisher represents and warrants that
Publisher will at all times fully comply with all applicable statutes, rules and regulations with
respect to Publisher’s business and will not engage in and/or facilitate spamming, indiscriminate
advertising or unsolicited commercial email or otherwise fail to comply with the CAN SPAM
Act of 2003 (Public Law 108-187 or any successor legislation), laws governing deceptive trade
practices or online marketing/advertising and/or any other laws and/ or regulations that govern
email marketing and/or communications.
(g) European Privacy Laws. "EU Privacy Laws" means the European Union General Data Protection Regulation ("GDPR"),
the European Union Directive on Privacy and Electronic Communications (the ePrivacy directive) and any local implementing laws,
including any subsequent legislation replacing or amending any such laws from time to time.
Note that European Privacy Laws may apply to you if (i) you operate from an EEA member state or Switzerland;
or (ii) you market to or target individuals in an EEA member state or Switzerland; or; (iii) you collect or otherwise
process any personal data (as such term is defined under GDPR) from users in EEA member states or Switzerland.
If any of the foregoing apply or you are otherwise subject to EU Privacy Laws then you hereby represent, warrant,
covenant and agree that you will (a) comply with EU Privacy Laws (b) inform end users in a prominent manner of their rights
under EU Privacy Laws and that you use tracking devices and cookies for advertising purposes, including Interest-Based Advertising;
and (c) obtain end user consent to place tracking devices, such as cookies (including those enabled by MaxBounty at your request
on your behalf) on such end users' computers and internet enabled devices and provide information regarding the removal of such tracking devices.
(h) Prohibited Promotional Actions. Publisher represents and warrants that Publisher will not
engage in pop-up or pop-under advertising using any means involving third party properties and/
or services (software). Pop up/unders are acceptable on a first party basis only when triggered
by Publisher’s site content /site visit or by downloadable software applications for which Publisher
is the owner/operator. Pop up/unders delivered through downloadable software cannot engage
in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural
search results. Pop up/unders must honor the EvoLeads Publisher Code of Conduct requirements
(as such requirements may be modified from time to time), including but not limited to: (i)
installation requirements, (ii) end-user agreement requirements, (iii) afsrc=1 requirements, (iv)
requirements prohibiting usurpation of a Transaction that might otherwise result in a Payment to
another Publisher (such as purposefully detecting and forcing a subsequent click-through on a link
of the same Advertiser) and (v) non-interference with competing Advertiser/ publisher referrals.
(i) Personally Identifiable Information of Customers. Publisher represents and warrants that
Publisher will not enable the Tracking Code to collect personally identifiable information of
Customers that would allow EvoLeads to personally identify Customers.
(j) No Agreement Violation Acknowledgment: Publisher acknowledges that executing this
Agreement will not be a violation of any other agreement Publisher might have with another
person or entity.
(k) Publisher shall make no public announcement regarding the existence or content of the
Payments without EvoLead’s prior written approval in its sole discretion.
(a) Tracking Transactions and Payments. EvoLeads shall determine (where possible) actual
Payments that should be credited to Publisher’s Account. EvoLeads may, in EvoLead's sole
discretion, apply an estimated amount of Payments, if: (i) Publisher is referring Customers to
Advertiser as verified by clicks through Links to Advertiser with EvoLead’s Tracking Code, (ii)
where there is an error in Advertiser's transmission of Tracking Code data to EvoLeads, and (iii)
where EvoLeads is able to utilize a historical analysis of Publisher’s promotion of Advertiser to
determine an equitable amount of estimated Payments.
(b) Charge-backs. An Advertiser may apply, or EvoLeads may apply, a debit to Publisher’s
Account in an amount equal to a Payment previously credited to Publisher’s Account in
circumstances of : (i) product returns; (ii) duplicate entry or other clear error; (iii) non-bona fide
Transactions; (iv) non-receipt of payment from, or refund of payment to, the Customer by the
Advertiser; (v) Publisher’s failure to comply with Advertiser's Program terms or other agreement
with Advertiser ("Charge-back") or (vi) adjustments necessary to reconcile estimated Payments
with actual Payments. Charge-backs may be applied to Publisher’s Account at any time, including
previous payment cycles.
(c) Access to Tracking and Reporting Tools. EvoLeads shall provide Publisher with access
to tracking and reporting tools, and to support services. EvoLeads may not be able to provide
tracking detail regarding Customer Transactions on a real-time basis for all Advertisers and
there may be reporting delays regarding Transactions for some Advertisers. EvoLeads may
make available, for fees that EvoLeads shall publish from time-to-time, enhanced reporting
capabilities and other services that are not included in the standard Network Service.
(d) Support. Support for Publisher’s program may be available on-line through the "Contact
Us" area in the EvoLeads Account Manager, which allows Publisher to categorize and describe
Publisher’s issue. EvoLeads may also make available online help to allow Publisher to check the
status of all issues. Phone support may also be available during operating hours, except holidays.
(e) Facilitating Payment of Payments. Subject to other provisions in this Agreement, EvoLeads
shall credit Publisher’s Account with a Payment for each qualifying Transaction in
accordance with the Advertiser's Payment rate and Program terms for the relevant Transaction.
On the 15th day of each calendar month, EvoLeads will issue to Publisher any positive balance
in Publisher’s Account for Transactions reported for the previous month, provided Publisher’s
Account balance exceeds the required “Minimum Account Balance.” EvoLeads shall have no
obligation to make payment of any Payments for which EvoLeads has not received payment
from the relevant Advertiser of all monies due to EvoLeads (including for all Payments owed
by such Advertiser to all of such Advertiser's Publishers). If EvoLeads elects, in its own
discretion, not to make payment to Publisher for amounts not received from an Advertiser,
those amounts shall not be included in the Minimum Balance Amount. Publisher’s recourse
for any earned Payments not paid to Publisher shall be to make a claim against the relevant
Advertiser(s), and EvoLeads disclaims any and all liability for such payment. Publisher may
elect to receive payment in any of the currencies that EvoLeads supports (as may be amended by
EvoLeads). The conversion rate shall be determined in accordance with EvoLead’s operating
standards using the rates prevailing upon the date that payment is made to Publisher, or upon
the basis of historical conversion rates if rates are unavailable. The number or amount of
Transactions, credits for Payments, and debits for Charge-backs, as calculated by EvoLeads,
shall be final and binding on Publisher. Publisher is responsible for paying (and EvoLeads has
no responsibility to withhold on Publisher’s behalf) any and all required province and federal
taxes, including, but not limited to FICA (Social Security), unemployment insurance, federal or
province income taxes, disability insurance and workers' compensation insurance.
(f) Negative Accounts. Publisher may have a negative balance if Publisher’s Account is debited
amounts equivalent to previous Payments for Charge-backs and Publisher does not have an
adequate Account balance to cover the Charge-back amounts. When Publisher has a negative
balance, Publisher must immediately remit payment to EvoLeads in an amount sufficient to
bring Publisher’s Account to a zero balance, or Publisher’s Account is subject to 1.5% interest per
month, compounded monthly.
(g) Record and Audit Rights. EvoLeads shall keep proper records and books of account
relating to the computation of payments to be made under this Agreement. Publisher may
inspect such records to verify reports upon reasonable prior notice and during standard business
hours. Any such inspection will be conducted in a manner that does not unreasonably interfere
with EvoLeads business activities and, except as provided below, shall be conducted no more
frequently than once every six months. EvoLeads shall make any overdue payments disclosed
by the audit within 30 days of such disclosure.
(h) Termination of Programs and Offers. Programs and Offers may be discontinued at any time.
(a) Linking to Advertisers. For each Advertiser's Program that Publisher has been accepted to,
the Advertiser is granting to Publisher the right to display and Link to the Advertiser's Web site
or Web site content in accordance with the Advertiser's Program terms for the limited purposes
of promoting the Advertiser's Program, subject to the terms and conditions of this Agreement.
Publisher’s use of the Link signifies Publisher’s agreement to refrain from copying or modifying
any icons, buttons, banners, graphics files, or content contained in the Link, including but not
limited to refraining from removing or altering any copyright or trademark notices. As between
EvoLeads and Publisher, EvoLeads owns all rights in and to all information regarding the
Customers that Publisher refer to Advertisers through EvoLeads.
(b) EvoLead's Use of Publisher’s Marks. Publisher authorizes EvoLeads to utilize Publisher’s
trademarks, service marks, trade names, and/or copyrighted material that Publisher provides
to EvoLeads through Publisher’s Account to promote Publisher’s participation in the Network
Services.
(c) Publisher’s Use of EvoLead's Proprietary Rights. Publisher agrees that Publisher’s use of
any EvoLeads Web site (such as www.EvoLeads.com) and Publisher’s use of any EvoLeads
trademarks, service marks, tradenames, and/or URLs is subject to the license and terms of use
that are available from such Web site ("Terms of Use"). s explicitly agree not to adopt or use
in any manner any trademarks, service marks, tradenames, and/or URLs that are the same or
confusingly similar to, or are combined with, those of EvoLeads.
(d) Retention of Rights. All proprietary rights of Advertisers, Publisher, and EvoLeads, and all
goodwill arising as a result of such rights, inure to the benefit of such owner.
(e) No Challenge to EvoLead's/Advertiser's Proprietary Rights. Publisher acknowledges
that Publisher obtains no proprietary rights in EvoLead's trademarks, service marks, tradenames,
URLs, copyrighted material, patents, and patent applications, and agrees not to challenge EvoLead's
proprietary rights. Publisher acknowledges that Publisher obtains no proprietary rights
in Publisher’s Advertisers' proprietary rights, and agrees not to challenge such Advertiser's
proprietary rights.
(f) Collection and Use of Data. EvoLeads does not collect information about a Network
Operator’s Custom Network-related transactions, other than what it receives directly from
Network Operator or through the installed Transaction Tracking Codes. EvoLeads reserves the
right to utilize this data on a non-personally identifiable, aggregate basis, which may include
Network Operator’s information, to analyze the performance of the EvoLeads Platform and/or
Site, monitor the use of the Transaction Tracking Codes and promote EvoLeads Platform and/
or Site performance and functionality. When Network Operator’s account is disabled, inactive or
paused, including for non-payment, EvoLeads reserves the right to utilize Network Operator’s
personally identifiable information for their advertisers and publishers.
(a) Confidential Obligations. Publisher or EvoLeads may provide the other with information
that is confidential and proprietary to that party or a third party, is of special and unique value to
EvoLeads or the third party and relates to the value and the operation of the businesses of EvoLeads
and a third party and as may be designated by the disclosing party or that is reasonably
understood to be proprietary and/or confidential ("Confidential Information").. During the term
of this Agreement, and until such time as the Confidential Information is no longer protected
as a trade secret under the laws of Quebec, neither party will use or disclose any Confidential
Information' of the other party except as specifically contemplated herein. Both parties will use
all commercially reasonable efforts to protect and maintain the confidentiality of the Confidential
Information. Subject to the foregoing, Confidential Information shall include, without limitation,
technical or non-technical data, a formula, pattern, compilation, program, device, method,
technique, drawing, process, financial data, or list of actual or potential customers or suppliers,
the advertisement before publication, and the terms of the Payments. Confidential Information
does not include information that: (i) has been independently developed by the receiving party
or was in the possession by the receiving party without access to the other party's Confidential
Information; (ii) has become publicly known or is in the public domain through no breach of this
Section by the receiving party; (iii) has been rightfully received from a third party authorized
to make such disclosure without breach of this Agreement; (iv) has been approved for release
in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or
governmental authority. At the request of the disclosing party, the receiving party shall return
all of the disclosing party's Confidential Information to the disclosing party. Upon termination
of this Agreement, Publisher must destroy or return to EvoLeads any Confidential Information
provided by EvoLeads to Publisher under this Agreement.
(b) Provision of Info to Advertisers/Third Parties. Publisher agrees that EvoLeads may,
but is not obligated to, provide Publisher’s email address(es) and basic Publisher Account detail
(including but not limited to Publisher’s address, phone and fax number, Web site name, the
date the website or subscription email first entered into operation, and visitor demographics) to
Advertisers. EvoLeads may provide any and all Customer, Transaction, and/or Tracking Code
data to the Advertiser to which Publisher referred such Customer, and to any third party in EvoLead's
sole discretion, including but not limited to all regulatory, legislative, and judicial bodies,
and pursuant to allegations and claims of proprietary rights infringement.
(c) Nonsolitication. During the term of this Agreement and for six months thereafter, Publisher
shall not knowingly solicit any on-line advertiser, publisher, Website, or email provider that is
a member of the EvoLeads. In the event Publisher does so directly contract with such a party,
Publisher shall pay Company an additional commission equal to what Company would otherwise
have earned had Publisher not violated this Section 15(c).
(d) Noncompetition. During the term of this Agreement and six months after termination of this
Agreement, Publisher shall not enter into any agree to provide or provide services similar to the
services Publisher is providing under this Agreement with a person or entity offering services and
products similar to those offered by any Advertiser which accepted Publisher into its program.
The six month time period stated above shall be suspended during each period of time in which
Publisher is in breach under this Section. EvoLeads further reserves the right to reduce the scope
of the obligations under the restrictive covenants in this section unilaterally and without the
consent of any other person or entity, effective upon giving notice thereof. The provisions of
this Section constitute separate and distinct covenants on the part of Publisher. The restrictions
set forth in this Section shall be deemed severable and the invalidity or unenforceability of
any restriction shall not affect the validity or enforceability of any of the other restrictions of
this Section or any other provisions of this Agreement. If any court or arbitrator of competent
jurisdiction determines that any restriction under this Section is unreasonable in scope, duration
or geographic area or is unenforceable under applicable law, EvoLeads and Publisher agree
that the court or arbitrator shall rewrite, strike or eliminate the portion of such restriction that is
unreasonable or unenforceable, in which event the remaining portions of such restriction shall
continue in force and effect. In the event of any breach by Publisher of the terms and conditions
of this Agreement, including this Section, EvoLeads shall have the right, among any other rights
or remedies at law or in equity, to seek and receive injunctive relief to restrain Publisher from
continuing with such breach. As the EvoLeads and Publisher’s business is primarily conducted
over the internet, Publisher acknowledges that the geographical scope and other restrictive
covenants of this noncompetition provision are fair, reasonable and necessary to protect EvoLeads
and Advertiser’s legitimate interests and investment in its business. Publisher represents
and warrants that Publisher’s experience and skills are such that the restrictive covenants set forth
in this Agreement, including this Section, will not prevent Publisher from earning as a business
person an adequate livelihood for Publisher and those dependent upon Publisher should such
restrictive covenants be specifically enforced against Publisher.
(a) Term. This Agreement shall begin either upon (1) Publisher’s formal execution of this
Agreement or (2) upon Publisher’s indication that Publisher has accepted this Agreement by
providing the required information and ‘clicking through' the acceptance button on the EvoLeads
Web site. This Agreement shall continue until terminated in accordance with the terms of
this Agreement.
(b) Mutual Termination.. This Agreement may be terminated by either party upon 15 days
notice.
(c) Deactivation of Account.. Publisher’s Account may be deactivated during investigation of
breach of this Agreement. EvoLeads may also temporarily deactivate or terminate Publisher’s
Account if: (i) Publisher or Publisher’s agent are responsible for the improper functioning of Ad
Content, or if Publisher otherwise interfere with and/or fail to maintain the Tracking Code; (ii)
Publisher’s Account has not been logged into and/or there have been no Transactions credited
to Publisher’s Account for any 30 day period; (iii) Publisher maintains a negative balance in
Publisher’s Account; (iv) EvoLeads determines Publisher is diluting, tarnishing or blurring EvoLead’s
proprietary rights; (v) Publisher begins proceedings to challenge EvoLead's proprietary
rights; or (vi) a third party (including a EvoLeads Advertiser) disputes Publisher’s right to use
any Link, domain name, trademark, service mark, trade dress, or right to offer any service or
good offered on Publisher’s Web site, or through any of Publisher’s promotional means. During
deactivation, Publisher shall not accrue Payments in Publisher’s Account. After deactivation and
EvoLead’s investigation, EvoLeads will notify Publisher if Publisher’s Account is reinstated or is
(d) Termination by Advertiser.. An Advertiser may terminate Publisher, one of Publisher’s Web
sites, or Publisher’s ability to use a promotional method, from the Advertiser's Program for any
or no reason, upon earlier of the timeframe stated in Advertiser’s Program details or 7 days
written notice with effect from the 8th day. Additionally, Advertiser may immediately terminate
Publisher from the Advertiser's Program for breach of a third party's proprietary rights, and/or
diluting, tarnishing or blurring an Advertiser's trademarks, tradenames, and/or service marks, or
for Publisher’s material breach of the Advertiser's Program terms or of this Agreement.
(e) Termination or Deactivation by EvoLeads.. EvoLeads may have a network quality
department that reviews publisher conduct. Any suspected fraudulent, abusive or otherwise
illegal content or activity by Publisher through Publisher’s promotional methods, or that is
perpetrated through use of the Network Service, is grounds for immediate termination of
this Agreement or deactivation of Publisher’s Account. EvoLeads may also terminate one of
Publisher’s Web sites, or Publisher’s use of a promotional method, from an Advertiser's Program,
at any time in EvoLead's sole discretion. This Agreement may be terminated immediately upon
notice for Publisher’s breach of this Agreement or by notice by Advertiser of Publisher’s breach of
any additional agreement with Advertiser. Breach of any Section of this Agreement may result
in Chargeback of one or more Payments.
(f) Effect of Termination for Publisher’s Breach.
(i) Upon termination of this Agreement, or in case of deactivation of Publisher’s
Account, Publisher shall no longer accrue Payments in Publisher’s Account, including but not
limited to subsequent sales and/or Leads for click-throughs that occurred prior to termination.
(ii) If this Agreement is terminated based upon Publisher’s breach, Publisher shall not
be eligible to enter into a new click-through Publisher Service Agreement with EvoLeads, and
any attempt to do so shall be null and void.
(iii) Upon termination of this Agreement, any outstanding payments shall be paid by
EvoLeads to Publisher within 90 days of the termination date, and any outstanding debit balance
shall be paid by Publisher to EvoLeads within 30 days of termination of this Agreement. All
payments are subject to recovery for Charge-backs.
(iv) Upon termination of this Agreement, any permission granted under this
Agreement will terminate, and Publisher must immediately remove all Links to Advertiser(s).
Provisions of this Agreement that by their nature and context are intended to survive the
termination of this Agreement shall survive the termination of this Agreement to the extent that
and as long as is necessary to preserve a party's rights under this Agreement that accrued prior to
termination.
(v) If Publisher is terminated for violating the terms of this Agreement, and EvoLeads believes
that EvoLeads might be subjected to a Claim (as defined below) under the
indemnity provisions of this Agreement, EvoLeads may withhold any Payments to Publisher for
the time period of the statute of limitations for that particular type of Claim.
(a) Business Operations. Each party will make reasonable commercial efforts to keep its Web
site operational during normal business hours. However, the parties agree that it is normal
to have a certain amount of system downtime and agree not to hold each other or Publisher’s
Advertisers liable for any of the consequences of such interruptions. EvoLeads may modify the
Network Service, or discontinue providing the Network Service, or any portion thereof, at any
time.
(b) Authority. Each party represents and warrants to the other party as to itself that the person
executing this Agreement is authorized to do so on such party's behalf. IF YOU ARE AN
INDIVIDUAL, YOU REPRESENT AND WARRANT THAT YOU WERE AT LEAST 18
YEARS OF AGE ON THE EFFECTIVE DATE OF THIS AGREEMENT.
(c) Non-infringement Warranties. Publisher represents and warrants that: (i) Publisher has
all appropriate authority to operate, and to any and all content on, Publisher’s Web site(s); (ii)
Publisher has all appropriate authority in any promotional method Publisher may choose to use;
(iii) Publisher’s Web site(s) and Publisher’s promotional methods do not and will not infringe a
third party's, a EvoLeads Advertiser's, or EvoLead’s, proprietary rights; and (iv) Publisher shall
remain solely responsible for any and all Web sites owned and/or operated by Publisher and all
of Publisher’s promotional methods. EvoLeads may or may not review all content on Publisher’s
Web site or used by Publisher in Publisher’s promotional methods.
(d) Compliance with Laws. Publisher is responsible for compliance with the requirements of
all relevant legislation (including subordinate legislation and the rules of statutorily recognized
regulatory authorities) in force or applicable in the United States or in any other applicable
territory, and warrant that no promotion method used by Publisher or the content of Publisher’s
Web site(s) will render EvoLeads liable to any proceedings whatsoever.
(e) Limitation of Liabilities. ANY OBLIGATION OR LIABILITY OF EVOLEADS UNDER
THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF YOUR PAYMENT PAID
TO PUBLISHER DURING THE YEAR PRECEDING THE CLAIM BY EVOLEADS FOR
THE ADVERTISER FOR WHICH THE CLAIM AROSE UNDER THIS AGREEMENT. NO
ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST THE OTHER PARTY
TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS
AGREEMENT. PUBLISHER AGREES THAT EVOLEADS SHALL NOT BE LIABLE TO
PUBLISHER, OR ANY THIRD PARTY (INCLUDING BUT NOT LIMITED TO A CLAIM BY
ANOTHER PUBLISHER OR AN ADVERTISER OF THE NETWORK SERVICE), FOR ANY
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST PROFITS, BUSINESS
INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR CLAIM.
(f) Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT
TO APPLICABLE LAW, EVOLEADS DISCLAIMS ALL WARRANTIES EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS,
(B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C)
THAT EVOLEADS'S SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING
CORRECTNESS, ACCURACY, OR RELIABILITY; (D) AGAINST INTERFERENCE
WITH ENJOYMENT OF THE PUBLISHER’S INFORMATION OR WEB SITE; OR (E) THE
PERFORMANCE, AVAILABILITY, FUNCTIONALITY OR ANY OTHER ASPECT OF
EVOLEADS’S OR ADVERTISER’S SERVICE. ALL 'INFORMATION' AND 'COMPUTER
PROGRAMS' PROVIDED TO PUBLISHERS IN THE COURSE OF THIS AGREEMENT
ARE PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY
QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH PUBLISHER.
EVOLEADS IS, UNDER NO CIRCUMSTANCES, RESPONSIBLE FOR THE PRACTICES,
ACTS, OR OMISSIONS OF ANY ADVERTISER OR PUBLISHER, OR SUCH ADVERTISER
OR PUBLISHER'S WEB SITE(S), AND/OR THE CONTENT OF AN ADVERTISER'S WEB
SITE OR THAT AN ADVERTISER MAKES AVAILABLE THROUGH THE NETWORK
SERVICE.
(g) Remedies. No remedy or election shall be deemed exclusive but shall, wherever possible, be
cumulative with all other remedies at law or in equity.
(h) Benefit of the Bargain. THE PROVISIONS OF THIS SECTION ARE AN ESSENTIAL
ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS AGREEMENT.
Publisher shall defend, indemnify and hold EvoLeads and Advertisers harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys' fees) incurred, claimed or sustained by third parties, including but not limited to Advertisers, directly or indirectly as a result of (a) Publisher's breach of or non-compliance with this Agreement and its representations and warranties, (b) Publisher's violation of any law, or an alleged violation of law by EvoLeads that is a direct or indirect result of Publisher's use of the Network Service, (c) Publisher's use of the Network Service, (d) Publisher's participation in any Program, (e) any content, goods or services offered, sold or otherwise made available by Publisher to any person, including but not limited to any third party claim arising from use of or access to any the advertisements under this Agreement or any material to which users can link or any products or services made available to users, (f) Publisher's acts or omissions in using, displaying or distributing any internet links obtained from the Network Service or elsewhere, including but not limited to Publisher's use of internet links via email distribution, (g) any claim that EvoLeads is obligated to pay tax obligations in connection with payment made to Publisher pursuant to this Agreement and/or any Advertiser's Program, and (h) any violation or alleged violation by Publisher of any rights of another, including breach of a person's or entity's intellectual property rights (each (a)-(h) individually is referred to hereinafter as a "Claim"). Should any Claim give rise to a duty of indemnification under this Section 18, EvoLeads shall promptly notify Publisher, and EvoLeads shall be entitled, at its own expense, and upon reasonable notice to Publisher, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Publisher's obligations to indemnify or hold EvoLeads harmless. Publisher shall not settle any Claim without EvoLead’s prior written consent. Publisher also shall indemnify for any reasonable attorneys' fees or other costs incurred by an indemnified party in investigating or enforcing this Section 18. In the context of this Section 18 only, the term “EvoLeads” shall include officers, directors, employees, corporate publishers, subsidiaries, agents, and subcontractors.
(a) Headings and References. Headings of Sections are for the convenience of reference only.
Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated
words or terms, including those definitions contained in the opening paragraph.
(b) Notices. Except as provided elsewhere herein, both parties must send all notices relating
to this Agreement to: (i) for EvoLeads, via registered mail, return receipt requested or via an
internationally recognized express mail carrier to EvoMarketplace, Inc, 3680 Du Musee, Montreal,
Quebec H3G 2C9 Canada (effective upon actual receipt); and, (ii) for Publisher, at the email
(effective upon sending as long as EvoLeads does not receive an error message regarding
delivery of the email) or physical address listed on Publisher’s Account (effective five (5) days
after mailing).
(c) Third Party Disputes. In the event of a third party claim against either: (a) EvoLead's
intellectual property; or (b) against EvoLead's right to offer any service or good on EvoLead's
Web site(s) or if, in EvoLead's opinion, such a claim is likely, EvoLeads shall have the right, at
its sole option and in its sole discretion, to (i) secure the right at EvoLead's expense to continue
using the intellectual property or good or service; or (ii) at EvoLead's expense replace or modify
the same to make it non-infringing or without misappropriation.
(d) Relationships of Parties/Third Party Rights. The relationships of the parties to this
Agreement shall be solely that of independent contractors, and nothing contained in this
Agreement shall be construed otherwise. Nothing in this Agreement or in the business or
dealings between the parties shall be construed to make them joint ventures or partners with each
other. Neither party shall do anything to suggest to third parties that the relationship between
the parties is anything other than that of independent contractor. Publisher agrees that Publisher’s
consent is not necessary to modify any Advertiser Service Agreement.
(e) Choice of Law/Attorneys' Fees. 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.
(f) Force Majeure. Neither party shall be liable by reason of any failure or delay in the
performance of its obligations hereunder for any cause beyond the reasonable control of such
party, including but not limited to electrical outages, failure of Internet service providers,
default due to Internet disruption (including without limitation denial of service attacks), riots,
insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other
acts of God.
(g) Severability/Waiver. If any provision of this Agreement is held by any court of competent
jurisdiction to be illegal, null, or void or against public policy, the remaining provisions of this
Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify
any invalidated provision to carry out the stated intentions in this Agreement.
(h) Assignment and Acknowledgement. Neither party may assign this Agreement without the
prior express written permission of the other party. Notwithstanding the foregoing, Publisher’s
consent shall not be required for assignment or transfer made by EvoLeads (1) due to operation
of law, or (2) to an entity that acquires substantially all of EvoLead's stock, assets, or business,
or (3) to a related entity (e.g. parent or subsidiary of parent). Publisher’s use of the Network
Service is irrefutable acknowledgement by Publisher that Publisher has read, understood, and
agreed to each and every term and provision of this Agreement. EvoLeads may establish from
time to time rules and regulations regarding use of the Network Service as published on the
Network Service and incorporated herein.
(i) Marketing. Publisher agrees that EvoLeads may identify it as a EvoLeads Publisher in client
lists and may use Publisher's name and/or logo solely for such purpose in its marketing materials.
Any other uses of Publisher's name and/or logo not otherwise described or contemplated herein
shall require Publisher's prior written consent.
(j) Language – This Agreement has been drafted in English at the request of the parties. Any
discrepancies arising between this Agreement and a translation in another language shall be
resolved in favor of the English text.
(i) Tax Status and Obligations. EvoLeads is not obligated to and shall not provide Publisher
with tax and/or legal advice. EvoLeads undertakes no duty to investigate or research
Publisher’s tax status and/or obligations, and such research and investigation is solely Publisher’s
responsibility. Publisher is obligated to independently assess and comply with all relevant
tax and legal requirements, and Advertiser is responsible for its own sales tax collection and
reporting obligations arising from sales made to Customers. If EvoLeads provides Publisher with
information regarding a particular Advertiser or Publisher, the information shall not be deemed
tax or legal advice, and EvoLeads shall not be responsible for the accuracy of such information.
Any Publisher or Advertiser addresses provided to Publisher are addresses provided by the
relevant Advertiser or Publisher, and such addresses may not necessarily indicate the location or
presence of the Publisher or Advertiser in such location or elsewhere.
(k) Construction. This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior and contemporaneous agreements
and communications, whether oral or written, between the parties relating to the subject matter
hereof, and all past courses of dealing or industry custom.
(l) Waiver. The waiver of any breach or default of this Agreement will not constitute a waiver
of any subsequent breach or default, and will not act to amend or negate the rights of the waiving
party.
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.