Reliable
Remodeler Publisher Agreement
A. Agreement Terms and
Conditions
These terms and conditions govern your (“Company”) participation in the ReliableRemodeler.com, Inc. publisher lead generation program. By working with ReliableRemodeler.com, Inc. and executing this Reliable Remodeler Publisher Agreement (the "Agreement"), Company agrees to abide by all of the terms and conditions set forth herein. If Company does not fully comply with all terms and conditions of set forth in this Agreement, then Company shall be deemed ineligible to participate in any aspect of the ReliableRemodeler.com, Inc. publisher lead generation program.
B.
Approval
Participation by Company in the ReliableRemodeler.com, Inc. publisher lead generation program (the "Program") is subject to review and approval by ReliableRemodeler.com, Inc. ("Reliable," "we," "us", or “our”, and, together with Reliable’s affiliates , the “Reliable Group”).For the purposes of this Agreement an “affiliate” is any person or entity that, directly or indirectly, owns or controls, is owned or controlled by, or under common ownership or control, with Reliable. Reliable reserves the right to withhold such approval for any reason or for no reason. In the event that Company is not accepted to participate in the Program immediately following execution of this Agreement, we will notify you of that fact as soon as practicable after such decision is made by us. Once Company has been accepted into the Program, Company's continued right to participate is conditioned upon Company's ongoing compliance with all of the terms and conditions of this Agreement. Failure of the Company to observe the terms and conditions of this Agreement will disqualify Company from participating in the Program and may subject the Company to additional consequences as more fully detailed below. We will attempt to notify Company if we discover that Company is not in compliance with any term or condition of this Agreement, but our failure to so notify Company does not affect the Company's eligibility to participate in the Program following a breach of the terms or conditions hereof. We will not approve Program participation for companies operating sites containing pornographic or offensive material (the determination of which shall be ours in our sole subjective discretion), software trading, hacking or so called "phreaking" content, illegal music or movie reproduction, content or downloads, and any content regarding or involving illegal activity.
C.
Non-Solicitation
Company agrees that Company will not approach or attempt to establish contract with any of the Reliable Group’s clients (each such client, individually a “Client” and all such clients, collectively "Clients") directly or indirectly via a Client's Ad agency, broker or any other person or entity for the period in which any such Client is participating in a Reliable Group marketing program and for a period of one year thereafter. Reliable will promptly reply in writing to any inquiries received from Company regarding the status of any person or entity as a Reliable Client so as to aid Company in its efforts to comply with the non-solicitation provisions of this Agreement. Because Reliable will be irreparably harmed by Company conduct which violates the non-solicitation provisions of this Agreement and because the true extent of such harm will be impossible to quantify, monetary damages will not be an adequate remedy for any such conduct. Company agrees that Reliable shall be entitled to injunctive relief precluding Company from taking or continuing any action or conduct in violation of the non-solicitation provisions of this Agreement ("Violative Conduct") to be issued by any court of competent jurisdiction upon a showing of any such Violative Conduct by Company.
D. Client
Referral
Upon Approval pursuant to Section B, Company shall become a publisher for Reliable. Company is required to refer any and all inquires regarding Reliable Group programs and the potential creation of any client relationship with a member of the Reliable Group to Reliable as soon as is practicable after their receipt in order to maintain Company's eligibility to participate in the Program.
E. Program
(1) When Company participates in our Program, we will either provide Company with material to create a website for the purpose of search engine optimization, or Company can create such a website. In either event, no website shall be released online, and no submission, inclusion or any traffic can be sent to it, prior to Reliable’s review and written approval of it. All Program-related websites will contain links (“Links”) provided by us directing traffic to lead capture or product sales web pages served by Reliable or a Reliable Group Client. Company’s selection of entities to be included on any such website is also subject to Reliable's review and approval, which approval shall not be unreasonably withheld. One or more members of the Reliable Group may provide content to Company for use in or integration into Company's website ("Reliable Content"). In the event that any such Reliable Content is provided to Company, all of the material so provided, including imbedded bots, Data Miners (as defined below), links or other creative, graphic, text or html content shall remain at all times the sole property of Reliable. Company is hereby granted a fully-paid, non-exclusive license to use any Reliable Content for the duration of this Agreement. In the event of a breach of any provision of this Agreement by Company, Company agrees to immediately discontinue use of any Reliable Content upon notice of such breach to Company from Reliable. Nothing in this Agreement shall be deemed to transfer title to any Reliable Content to Company. (2) Upon receipt of prior
written approval from Reliable, Company shall be permitted to implement
the Reliable lead generation form on behalf of Reliable’s clients on sites
which Company owns, operates, or where Company otherwise has direct
control over the process on such site for lead generation. Notwithstanding the previous
sentence, Company is expressly prohibited from delegating or
subcontracting any Reliable campaigns to any third party (e.g. broker
relationships) without the prior written consent of Reliable. Company shall be permitted
to collect personally identifiable information from users (“User
Information”) subject to the following restrictions. Upon payment to
Company in respect of any individual item of User Information, Reliable
shall be vested with exclusive, ownership of such individual User
Information and Company shall: (a) make no use whatsoever of such
individual User Information (including, without limitation, using such
User Information for remarketing, or selling such information to third
parties); and (b) purge such User Information from its databases as soon
as is practicable following Reliable’s obtaining exclusive ownership of
such User Information (but in any event no later than 5 business days
after delivery of such User Information to Reliable). Company shall ensure
that any lead generation activities comply with all applicable laws and
that any site where user use of Reliable lead generation forms occurs has
a privacy policy that permits sharing of personally identifiable
information with Reliable for marketing purposes. Any violation of this subsection
shall constitute a material breach of this Agreement. Upon any material breach of
this Section E(2), Reliable shall be entitled to: (i) terminate this
Agreement upon written notice; (ii) invoke the provisions of
Section K(4) below; and (iii) avail itself of all other remedies
provided by the Agreement and/or at law. For purposes of clarification it
is agreed that any termination pursuant to this Section E(2) shall not be
deemed a termination pursuant to Section K(3) of the Agreement. Company
acknowledges and agrees that damages for violation of this
Section E(2) are not limited in any way by the Agreement or this
Addendum, and that such damages may include indirect, consequential,
exemplary, incidental and special damages in addition to any direct
damages that may be caused by such breach. F. Certain Requirements Regarding Promotion of
Client Programs
Failure to comply with any of the following
requirements shall result in Company being excluded from the Program and
shall entitle Reliable to withhold all or any portion of any amounts owing
to Company until such time as the Company resumes or begins compliance and
is approved for participation in the Program pursuant to Section B,
above:
G. Tracking and
Payment
Through our
proprietary software platform tracking system ("Tracking Software"; the
Tracking Software is sometimes generally referred to herein, together with
other electronic or coded tracking devices, bots or other mechanisms, by
use of the general term "Tracking"), we will determine which sales or
leads generated through Clients' websites originated from Links on
Company’s website (such generated leads are referred to herein as
"Commissionable Events"), and the type of transaction involved in the
Commissionable Events (for example, sales, referrals, or leads)
("Transaction"). For each Commissionable Event, we will pay Company the
amounts due for the given Transaction as specified in the Client Terms
("Client Terms") set forth on Exhibit A, as the same may be updated from
time to time by us. Such Exhibit A is incorporated herein by this
reference. The Tracking Software calculates commissions due based on
impressions, click-throughs, leads and orders generated from Links on
Company’s site, and is the final and binding source of all determinations
of payments due to Company.
H. Payment In Respect of Commissionable
Events
Within forty-five (45) days after the end of
each calendar month we will send Company a check for the payment of
commissions that Company has earned during such month together with any
other amounts owed to the Company in respect of its performance of
services hereunder during such month (collectively, "Commissions") less
any taxes required to be withheld under applicable law, provided: (i)
Company has not breached any of the terms and conditions of this
Agreement; (ii) the total payment for the commission period exceeds
$20.00; (iii) Company has previously provided us with a valid telephone
number and a valid mailing address to which the payment may be mailed; and
(4) if requested by us, Company has provided us with Company’s valid
taxpayer identification number.
I. Certain
Restrictions
J.
Confidentiality
Each party will maintain in confidence all Confidential Information disclosed by the other party. Confidential Information means the terms of this agreement and technical, marketing, financial, employee, planning, and other confidential or proprietary information. The obligations of the recipient of confidential information under this Section J will terminate if such information: (a) was already lawfully known to the recipient at the time of disclosure by the other party; (b) is disclosed to the recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the recipient has become, generally available to the public; or (d) is independently developed by the recipient without access to or use of the other party’s Confidential Information. In addition, the recipient will be allowed to disclose Confidential Information of the other party to the extent that such disclosure is: (i) approved in writing by the other party; (ii) necessary for the recipient to enforce its rights under this Agreement; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the recipient notifies the other party of such required disclosure promptly and in writing and cooperates with the other party, at the other party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
K.
Termination
(1) The initial term of this Agreement shall
be for one year from the date of its first execution by the last party to
so execute, provided, however, that this Agreement shall automatically
renew for successive one year terms unless: (a) not less than 30 days
prior to the date of any such automatic renewal, a party notifies the
other in writing that it does not wish to renew this Agreement; or (b)
this Agreement is earlier terminated pursuant to the provisions
hereof.
L.
Modifications
We reserve the right to change any of the terms and conditions in this Agreement, including changing the size of amounts payable to Company, at any time and in our sole discretion, by posting a new agreement or Client Terms on our website and notifying Company of its existence by email. Company’s continued use of the Links following such notification will indicate acceptance of such revised Agreement terms or Client Terms.
M. WARRANTY
DISCLAIMER
DUE TO THE
NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, WE CANNOT GUARANTEE
THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING
THE LINKS OR OUR SERVICES. WITHOUT LIMITING THE ABOVE, THE LINKS, OUR
CLIENT SITES AND ANY OTHER MATERIALS PROVIDED TO YOU ARE PROVIDED "AS IS,"
WITHOUT ANY WARRANTY OF ANY KIND, AND WE MAKE NO WARRANTIES, EXPRESS OR
IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION
ANY WARRANTIES (A) OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS
FOR A PARTICULAR PURPOSE, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL
COMPONENTS THEREIN, (C) THAT A PARTY’S SECURITY METHODS EMPLOYED WILL BE
SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE FACE OF ALL ATTACKS, (D)
REGARDING CORRECTNESS, ACCURACY, OR RELIABILITY OF ANY INFORMATION SET
FORTH THEREIN OR THEREON, OR (E) AGAINST INTERFERENCE WITH ENJOYMENT OF A
PARTY’S “INFORMATION” (WEB SITE). ALL ‘INFORMATION’ AND ‘COMPUTER
PROGRAMS’ PROVIDED 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 THE USER. SOME STATES LIMIT THE ABILITY TO
DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF IT MAY NOT
APPLY TO YOU.
N. LIMITATION OF
LIABILITY
YOU
ACKNOWLEDGE AND AGREE THAT WE WILL HAVE NO LIABILITY TO YOU FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, NOR
FOR ANY LOSS OF DATA, EQUIPMENT DOWNTIME, OR ANY LOSS OF REVENUE OR
PROFITS ARISING UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM,
EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER,
YOU ACKNOWLEDGE AND AGREE THAT OUR AGGREGATE LIABILITY TO YOU ARISING
UNDER OR WITH RESPECT TO THIS AGREEMENT OR THE PROGRAM WILL IN NO EVENT
EXCEED $50. SOME STATES RESTRICT THE ABILITY TO LIMIT LIABILITIES, SO THIS
CLAUSE MAY NOT APPLY TO YOU.
O.
Ownership
The Links and all user data collected pursuant to this Agreement are, as between Company and us, Reliable property and Reliable owns all rights, titles and interest in the Links and the all user data derived through the activities countenanced by this Agreement. From time to time, Reliable may imbed certain data mining tools within Links ("Data Miners") and/or use other technological means to monitor the use and/or display of Links ("Monitor Tools"). Any data derived by any such Data Miner or Monitor Tool shall be the sole property of Reliable. We may, from time to time, opt to share data derived from Data Miners or Monitor Tools with you to help you optimize the quality of leads generated from your activities or to otherwise improve the quality, functionality and mutual profitability of the activities of the parties under this Agreement. If we do share data with you derived from Data Miners or Monitor Tools, you agree that this data will be used solely by you for the purposes for which it is provided to you and will not be shared by you with any other person or entity without the express written consent of Reliable. In the event that Reliable chooses to provide advertising creative content, web design services or other web content of any type ("QS Web Content") to Company, Company shall use such QS Web Content: (i) in exactly the form that it is delivered to the Company by Reliable, and unless modification to any QS web content is approved by us in writing; (ii) only in the manner expressly permitted by Reliable in writing and only until Reliable shall request that Company discontinue its use of such advertising creative, at which time Company shall discontinue such use within two (2) business days of being requested by Reliable to do so.
P.
Indemnification
Company agrees that it shall, at its own expense, protect, defend, indemnify and hold harmless Reliable (including its affiliates, subsidiaries, successors and assigns) against every claim, demand, action, judgment, decree, loss, theft, damage, liability, cost and expense, including any amounts paid in defense or settlement, which may arise from or be incurred in connection with any of the following, except to the extent caused by the gross negligence or willful misconduct of Reliable: (i) any breach by Company of any term, condition, or covenant provided in this Agreement, including but not limited to those covenants provided in Section E & F of this Agreement; or (ii) any violation of any anti-spam law in any state and any infringement or alleged infringement or violation or alleged violation of any right of any third person, or by any third person regarding any patent, copyright, trademark or service mark used in connection with any information supplied by Company to Reliable. The rights and obligations of Reliable and Company under this section survive the termination, cancellation or expiration of this Agreement.
Q.
Miscellaneous
Company is an independent contractor and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, and sales representative or employment relationship between the parties. Company may not assign this Agreement, by operation of law or otherwise, without our prior written consent, and any such purported assignment will be null and void. The most recent version of this Agreement is the entire agreement between the parties regarding its subject matter and supersedes any other agreements or understandings between us. A party's waiver of, or failure to enforce, any right hereunder on one occasion will not be deemed a waiver of any other right on the same occasion or the same right on any other occasion. If a court having competent jurisdiction declares any provision of this Agreement invalid or unenforceable, other than Section C, which is essential to the bargain of the parties and without which this Agreement would not have been entered into by Reliable, the remainder of this Agreement will continue in full force and effect. R. Governing
Law
This Agreement
has been executed in, contemplates substantial performance in, and will be
governed by the laws of the United States and the State of Oregon without
reference to its choice of law principles, and for any disputes regarding
or concerning this Agreement, and Company acknowledges and agrees to
submit to the sole and exclusive personal jurisdiction
of the federal courts or state courts located in or having jurisdiction
over Portland, Oregon. If the Company is a domiciliary of a nation other
than the |