MASTER SERVICE AGREEMENT
The following terms and conditions (this "Agreement") is a legal agreement between Express
Revenue Network LLC ("Express Revenue Network"), and YOU the (PUBLISHER). PUBLISHER
and Express Revenue Network may also be individually referred to herein as a "Party" and
collectively as "Parties." If there is any conflict between these Terms and Conditions and the
Insertion Order(s), the Insertion Order(s) shall control. This Agreement constitutes the entire
and only agreement between Express Revenue Network LLC and PUBLISHER and supersedes
all prior or contemporaneous agreements, representations, warranties and conditions with
respect to the Network.
1) INSERTION ORDER: or “IO” means those certain separate or attached written
document(s) titled, substantially, Insertion Order, entered into and executed by both parties
hereto and which incorporates this MSA by reference. IOs shall set forth the specific Services
to be provided by PUBLISHER and may set forth additional terms such as the deliverables,
scope, duration, responsibilities, fees, payment terms, and other details applicable to such
Services.
2) SERVICES: PUBLISHER may enter into various advertising campaigns through one or more
online platforms (collectively, the “Platform”) which facilitates the exchange of “Payable
Actions” between potential advertisers and publishers. A “Payable Action” is defined as a
specific request made by a consumer for a specific product or service. Each Party may
represent one or more advertisers and/or publishers hereunder, according to insertion orders.
Express Revenue Network hereby grants to PUBLISHER during the Contract Period a non-
exclusive, royalty-free, worldwide right and license by all means and in any media, whether
now known or hereafter discovered, to use, reproduce, distribute, publicly perform, publicly
display and digitally perform such Advertisement and all its constituent parts.
3) QUALIFIED ACTIONS: Qualified Actions are referred to as Leads, Calls, Sales, SMS Text
Messages, or any other form of actionable optin prospects who meet Express Revenue
Network’s screening criteria as described in the Insertion Order and who provide their
complete valid contact data. PUBLISHER will be paid on a delivered Qualified Action basis
defined as when a user agrees through a pre approved opt-in method to be contacted. In the
case of any dispute between the parties as to the number of Qualified Actions, Express
Revenue Network’s numbers will control.
4) LEAD VALIDATION PROCEDURE: Express Revenue Network will verify each Qualified
Action delivered by the PUBLISHER. Upon receipt, all Qualified Actions will be checked for
data validity (i.e. containing valid data inputs for the fields specified in the Insertion Order)
and uniqueness of data (i.e. that the Qualified Actions are not present in Express Revenue
Network’s database for the designated Advertisement in the past 60 days). Express Revenue
Network reserves the right to send an auto-responder to all respondents re-confirming their
request for information. Any objections from respondents (about the email, or the offer) will
be raised to the PUBLISHER.
5) CREATIVE CHANGES: Editing of Express Revenue Network’s Creative is strictly
prohibited, without prior written approval from Express Revenue Network. Creative includes,
but is not limited to, text ads, graphic ads, from and subject line, any copy associated with the
campaign including survey questions and answers. Any changes to Creative, without prior
written permission will result in the loss of payment of Leads per offer/campaign basis.
6) ADVERTISER TRADEMARKS: The trademarks of Advertisers are to be used only as
presented and contained in Creative Materials. PUBLISHER shall not use and shall require it’s
third party partners know as SUB-PUBLISHERS/AFFILIATES to agree not to use Advertisers
trademarks for any other purpose, including but not limited to bidding on Advertiser
trademarks in search engines, using Advertiser trademarks in the display URL in search
marketing, and including Advertiser trademarks in Advertising Locations URLs.
7) ADVERTISING GUIDELINES: PUBLISHER may, in its complete discretion, reject, cancel or
remove at any time any Advertisement from the service for any reason without prior notice to
Express Revenue Network. PUBLISHER must notify Express Revenue Network following the
rejection, cancellation or removal of any Advertisement from the service within 24 hours.
8) TERM & TARGET LAUNCH: Term will be as noted in the (Insertion Order). Agreement
may continue thereafter by mutual consent but may be terminated by either party for any
reason whatsoever. If Budget caps are provided to PUBLISHER and PUBLISHER does not fulfill
set allocation Express Revenue has full rights to reassign any used allocation. All legitimate
revenue due to PUBLISHER will be paid during the next billing cycle. If PUBLISHER defrauds
the Express Revenue Network, then payment is revoked as determined solely by Express
Revenue Network.
9) PAYMENT: PUBLISHER will invoice Express Revenue Network on a monthly basis or per
agreed upon payment terms set forth in Insertion Order at the payout rates reflected in the
Insertion Order. The invoice will reflect delivery of final qualified action numbers that are
based upon numbers reported by Express Revenue Network to PUBLISHER pursuant to the
terms of this Agreement. All PUBLISHERS are required to submit a valid signed W9 or W8.
These documents can be found on the INTERNAL REVENUE SERVICE (IRS) website. Every
PUBLISHER Account must have a unique, valid taxpayer identification number (TIN) or valid
Social Security number on file with the Express Revenue Network. All payments are based on
actual figures as defined, accounted and audited by the Express Revenue Network. In the
event Express Revenue Network does not receive payment from it’s ADVERTISER(S) for any
reason including, but not limited to, traffic provided by PUBLISHER or PUBLISHERS third party
partners or if Advertiser charges back or requests refund of payments, or alleges that any
Event was fraudulent or was a result of a violation of an applicable law, rule or regulation,.
Express Revenue Network does not guarantee payments on behalf of the Advertiser. Express
Revenue Network will not pay for any Events that occur before a Program is initiated, after a
Program terminates or for actions for a Program that the PUBLISHER was not invited to or is
not assigned to promote. Express Revenue Network will not be responsible to compensate You
for actions that are not recorded due to your error. Express Revenue Network shall have no
obligation to make payment to PUBLISHER.
10) PAYMENT TERMS: Express Revenue Network shall make all payments to PUBLISHER
within 30 days Net (30) as per standard Network terms of the Invoice Date unless otherwise
specified and agreed and signed Insertion Order states. All payments made to PUBLISHER do
not include, and PUBLISHER shall pay, any sales, use or similar tax associated with such
payment. All Payment service charges such as bank transfer fees are the responsibility of the
PUBLISHER. All past due amounts shall accrue interest at the rate of one and one-half percent
(1.5%) per month or the maximum rate allowed by law, whichever is greater. Parties shall
keep, maintain and preserve, for the term of this Agreement and for one (1) year thereafter,
accurate records relating to amounts due hereunder (the “Relevant Records”). Either party
shall have a right at least once per calendar year to audit the Relevant Records of the other
party for the purpose of verifying fulfillment of party’s payment obligations pursuant to this
Agreement. Each audit will be conducted at a place agreed to by the parties, during the
normal business hours, with at least ten (10) business days prior written notice to the party to
be audited. Auditing party shall pay the fees and expenses of the audit, unless the audit
reveals a payment discrepancy of more than ten percent (10%) of all payments due in any
consecutive six (6) month period, in which case audited party shall pay the reasonable fees
and expenses of the audit, and shall immediately pay to auditing party all amounts found to
be due.
11) SUB AFFILIATES: PUBLISHER represents and warrants that it shall not use sub-affiliates,
third party affiliates, or its own network, each a “Sub-Affiliate” for purposes of this Agreement,
without Express Revenue Network’s prior written consent. PUBLISHER shall not broker
Programs to any Sub-Affiliate, or to any directly enrolled affiliates, without Express Revenue
Network’s prior written permission. If PUBLISHER contracts with or otherwise engages or
arranges for Sub-Affiliates to distribute Programs, PUBLISHER (a) must require each Sub-
Affiliate to agree in writing to terms and conditions substantially similar to the terms and
conditions of this Agreement and the PUBLISHER Responsibilities, and (b) remain solely
responsible and liable to the Express Revenue and/or Advertiser(s), as applicable, for all of the
actions (or failure to act) of any such Sub-Affiliates or any other parties working with, for, or
under such Sub-Affiliates. PUBLISHER must keep records of all Sub-Affiliates and
campaign/offer programs distributed by Sub-Affiliates during the term that this Agreement
remains effective and for a period of one (1) year thereafter and provide such records to
Express Revenue Network upon request. PUBLISHER must immediately comply with any
demand made by the Express Revenue Network to terminate any Sub-Affiliate from
distributing Programs; failure to comply immediately with this demand may result in
PUBLISHERS termination from the Network, loss of revenue, and/or any other remedy
available to the Express Revenue at its discretion. PUBLISHER shall contractually bind, to all
terms of this Agreement, all of its Sub-Affiliates who perform services under this Agreement.
PUBLISHER shall require and confirm that all Sub-Affiliates affirmatively accept, through
verifiable means, this Agreement prior to obtaining access to the Programs. If a Sub-Affiliate
fails to adhere to the requirements set forth herein, in addition to other remedies available to
Express Revenue Network, PUBLISHER may be terminated at Advertiser’s sole discretion, and
PUBLISHER shall indemnify Express Revenue Network for any resulting third party claims
against it.
12) COMPLIANCE: Express Revenue Network will actively monitor PUBLISHER activity using
a combination of its proprietary software and third party monitoring services. If Express
Revenue detects fraudulent activity, It is the obligation of the PUBLISHER to prove to Express
Revenue Network that they are not committing fraud. Express Revenue Network will hold
PUBLISHER payment in “Pending Status” until PUBLISHER has satisfactorily provided evidence
that PUBLISHER is not defrauding the system. Express Revenue Network flags accounts that:
Have click-through rates that are much higher than industry averages and where solid
justification is not evident; Have only click programs generating clicks with no indication by
site traffic that it can sustain the clicks reported; Have shown fraudulent leads as determined
by our clients or Use fake redirects, automated software, and/or fraud to generate clicks,
sales, calls and/or leads. If PUBLISHER is unable to prove to Express Revenue Network that
PUBLISHER is not committing fraud, PUBLISHER will forfeit its entire commission for all
programs and PUBLISHER’s account will be terminated. Express Revenue Network reserves
sole judgment in determining fraud.
13) PUBLISHER OBLIGATIONS: PUBLISHER shall: NOT PROVIDE Incentivized traffic. (unless
specified per Insertion Order).This includes but is not limited to any spoofing, redirecting or
trafficking from adult related websites in an effort to gain traffic or websites that are point,
lottery, coupon or rewards based and encourage users to click on Advertisements or use
Advertisements to generate revenue for users to win points, get rewards, or other any other
incentive. NOT PROVIDE actions generated from content, email or websites that are not
subject matter related to the category of the Advertisement represented. Such websites must
be content-based (not a list of links or advertisements), be written in English, receive a
minimum of unique page views per month, have a top-level name and must not infringe on
any personal, intellectual property or copyrights. This can be waived only by SPECIFICALLY
providing the name of the proposed website to Express Revenue Network. Must Be able to
provide the name of the Website where the action was generated. This information is only
delivered to Express Revenue Network upon request, but MUST be made available in case
there is a dispute or problem with the lead. NOT PROVIDE inappropriate content, which
includes, but is not limited to, content that (i) promotes the use of alcohol, tobacco or illegal
substances, nudity, sex, pornography adult-oriented content such as phone sex or escort
services, expletives or inappropriate language, (ii) promotes violence or the use of illegal
substances or activities such as how to build a bomb, counterfeiting money and software
pirating (iii) promotes illegal or unethical activity, racism, hate, "spam", mail fraud, gambling,
sweepstakes, pyramid schemes, or illegal advice (iv) is otherwise prohibited by Federal or
state law; and/or (v) will bring Express Revenue Network and/or its associated Advertisers
negative publicity. At no time, engage in, disseminate, promote or otherwise distribute any
Advertisement through the use of contextual media, specifically downloadable software (also
called adware, pop-up/pop-under technologies, plug-ins, robocalls, bots and other names as
applicable).
14) EMAIL CAMPAIGNS: PUBLISHER further represents and warrants that with respect to
email campaigns transmitted by PUBLISHER for Express Revenue Network, PUBLISHER shall at
all times only use the Express Revenue Network email creative provided by Express Revenue
Network, PUBLISHER may submit customized email creatives to Express Revenue for review
and MUST wait for the approval and consent form Express Revenue Network before any email
drops commence. If PUBLISHER breaches this term Express Revenue Network has the
authority and right to terminate this agreement and any Insertion Order with PUBLISHER and
revoke all payments. PUBLISHER must maintain strict compliance with the Controlling the
Assault on Non-solicited Pornography and Marketing Act of 2003 (CAN-SPAM) and any
amendments and modifications thereto.
15) SMS MARKETING, AUTODIALERS, ROBOCALLS: Express Revenue Network does not
permit or authorize any PUBLISHER, Sub-Affiliate, or other third party to send text messages
or use any auto-dialer (as defined in the TCPA (defined below) as part of PUBLISHER
performance under this Agreement. Express Revenue Network will not make payment to any
PUBLISHER that sends text messages to generate Compensable Transactions. Express
Revenue Network reserves the right to monitor all PUBLISHERS and Sub-Affiliate activities to
ensure compliance with our SMS marketing policies, as described herein and otherwise
communicated to PUBLISHER(s) and Sub-Affiliate(s). Express Revenue Network reserves the
right to terminate immediately and without notice any agreement, arrangement, or
relationship with any party that violates our SMS marketing policies. All PUBLISHERS and Sub-
Affiliates are responsible for complying with all federal, state, and local locals, rules, and
regulations governing all of their marketing activities, including but not limited to the
Telephone Consumer Protection Act (“TCPA'') and Federal Communications Commission rules
implementing the TCPA. PUBLISHER hereby understands and agrees that the TCPA makes it
unlawful to use any automatic telephone dialing system to make any call or send any text
message to any telephone number assigned to a cellular telephone service, unless the call is
made for emergency purposes or with the prior express consent of the called party. See 47
USC § 227(b)(1)(a); 47 C.F.R. § 1200(a). PUBLISHER is solely responsible for ensuring that
each Sub-Affiliate complies with this Section 9. PUBLISHER agrees to indemnify, defend, and
hold Express Revenue Network harmless against all liability, loss, damages, claims or causes
of action, including reasonable legal fees and expenses, arising out of or related to your
breach of this Section 9 or arising out of or related to any breach of this Section 9 made by
any Sub-Affiliate working with or under you. PUBLISHER represents and warrants that: (i) this
Agreement has been duly and validly executed and delivered by PUBLISHER and constitutes
PUBLISHERS legal, valid and binding obligation fully enforceable against it under its terms; (ii)
PUBLISHERS performance will comply with this Agreement and all laws, rules and regulations
including, without limitation, the Gramm-Leach Bliley Act, 15 U.S.C. §§6801-6809, Regulation
P, 12 C.F.R. pt. 1016, Regulation Z, 12 C.F.R. 1026, the Electronic Transfer Act, 15 U.S.C
§1693, Regulation E, 12 C.F.R. pt. 205, the Telemarketing and Consumer Fraud and Abuse
Prevention Act, 15 U.S.C. §§6101-6108, the Telemarketing Sales Rule, 16 C.F.R. pt. 310, the
Fair Credit Reporting Act (U.S.C. §1681m(a)), Regulation V, 12 C.F.R. pt. 1022 the Federal
Trade Commission Act, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act
(42 U.S.C. 227), provisions relating to the National Do Not Call Registry ((16. C.F.R. Part 310)
and applicable state Do Not Call List requirements), the Truth-in-Lending Act (15 U.S.C. 1601
et seq.), the Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.), the Fair Debt Collection
Practices Act, the Dodd-Frank Wall Street Reform and Consumer Protection Act including but
not limited to Section 1031 and 1036, 12 U.S.C §§5531, 5536, Section 5 of the FTC Act, the
Home Mortgage Disclosure Act, the Real Estate Settlement Procedures Act, the Secure and
Fair Enforcement for Mortgage Licensing (SAFE) Act, the Fair Debt Collection Practices Act, the
Federal Communications Act, the California Financial Privacy Act and any other relevant local,
state,
federal or international laws (collectively, “Laws”); (iii) PUBLISHERS performance will not
violate or infringe any intellectual property or proprietary right of any third party;
(iv) PUBLISHER understands and agrees that Express Revenue Network will contract with other
Network affiliates in direct competition with PUBLISHER; (v) PUBLISHER will maintain all
documents and records to demonstrate compliance with Laws, and it will provide evidence of
such upon reasonable request; (vi) PUBLISHER will not engage in any SMS, email, phone and
similar telecommunication marketing campaigns under this Agreement without the prior
express written consent of Epress Revenue Network; (vii) if applicable to PUBLISHERS
participation in the Network, PUBLISHER also undertakes, warrants and represents that it will
comply with all international legislation, including, without limitation, all provincial and federal
consumer protection and financial regulation legislation, CASL, the National Do Not Call List
Rules (“DNCL”), the Personal Information Protection and Electronic Documents Act (“PIPEDA”)
and provincial privacy legislation; (viii) PUBLISHER has obtained all necessary permits,
licenses, or other authorizations required by any law, regulations, or government or regulatory
authority for your business as conducted or as conducted during the term of this Agreement;
(ix) unless otherwise disclosed to Express Revenue Network, PUBLISHER is not the subject of
any investigation or prosecution by the Federal Trade Commission or any other federal or
state governmental or regulatory body or agency for your products or services and, to the
best of your knowledge, no such investigation or prosecution is threatened; (x) PUBLISHER
has disclosed the existence of any past federal or state decrees, orders, or consent
agreements, and any pending formal or informal government or private investigations or
lawsuits involving you and/or the officers, directors, or principals of your company to Express
Revenue Network prior to completing your online application via the PUBLISHER Admin Site;
(xi) PUBLISHER will promptly notify Express Revenue Network if it becomes the subject of any
investigation or prosecution by the Federal Trade Commission, Consumer Financial Protection
Bureau or any other federal or state governmental or regulatory body or agency; and (xii)
PUBLISHER has security policies in place to ensure the security, integrity, and confidentiality
of non-public customer information, protecting it against anticipated threats, and guarding it
against unauthorized access or use, including administrative, technical, and physical
safeguards used in the collection, distribution, processing, protection, storage, use,
transmission, handling, or disposal of non-public customer information.
16) EXPRESS REVENUE REPRESENTATIONS AND WARRANTIES: The execution, delivery,
and performance of this Agreement by Express Revenue Network has been duly approved by
its board of directors or managing partners/members, and no further corporate action is
necessary on the part of Express Revenue Network to consummate the transactions
contemplated by this Agreement.
17) PUBLISHER REPRESENTATIONS AND WARRANTIES: Publisher represents and
warrants that: (1) the recipients of all email addresses and phone numbers used by
PUBLISHER in connection with this Agreement have manifested affirmative consent to receive
commercial emails, calls, or SMS text messages from PUBLISHER and none of the email
addresses were obtained through email harvesting or dictionary attacks; (2) PUBLISHER will
not fraudulently add actions or clicks or inflate actions or clicks by fraudulent traffic
generation (as determined solely by Express Revenue Network, such as pre-population of
forms or mechanisms not approved by Express Revenue Network); (3) PUBLISHER will not
attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or
ineffective the Site tags, source codes, links, pixels, modules or other data provided by or
obtained from Express Revenue Network that allows Express Revenue Network to measure ad
performance and provide its services and (4) all of PUBLISHER’s efforts associated with this
Agreement comply with the laws of the United States, and any other laws of any other jurisdictions
which are applicable to PUBLISHER. PUBLISHER will not
engage in or promote any illegal activities of any kind in association with this Agreement.
18) CONFIDENTIALITY: The terms of this Agreement are confidential and shall not be
disclosed to any third party except where required by law. All information submitted by end-
user customers pursuant to this Agreement is proprietary to and owned by Express Revenue
Network. Such customer information is confidential and may not be disclosed by Express
Revenue Network or PUBLISHER. In addition, PUBLISHER acknowledges that all non-public
information, data and reports received from Express Revenue Network hereunder or as part of
the services hereunder is proprietary to and owned by Express Revenue Network.
(“Confidential Information”). PUBLISHER agrees not to disclose the terms of this Agreement,
including the CPA value, to any third party without the express written consent of Express
Revenue Network, and that such constitutes Confidential Information. All Confidential
Information is or may be protected by copyright, trademark, trade secret and other
intellectual property law, as appropriate. PUBLISHER agrees not to reproduce, disseminate,
sell, distribute or commercially exploit any proprietary or Confidential Information in any
manner. These non-disclosure obligations shall survive the termination of this Agreement for a
period of five (5) years. This section does not bind Express Revenue Network or PUBLISHER in
the event such information is required to be disclosed by operation of law. If a request is
made of PUBLISHER to disclose such information, PUBLISHER must immediately inform
Express Revenue Network via written notice sufficiently promptly to allow Express Revenue
Network to seek a Protective Order prior to the time commanded to produce or disclose such
Confidential Information, and PUBLISHER agrees to cooperate in whatever way Express
Revenue Network requests to attempt to protect that information from disclosure by
operation of law. Subject to prior approval by PUBLISHER, Express Revenue Network may
publicly announce its contractual relationship with PUBLISHER, which includes being on a
listing of Express Revenue Network publishers in general corporate materials and in industry
standard press releases.
19) NON-DISCLOSURE: As applicable, all information about consumers (“Customer
Information”) submitted to the PUBLISHER by reason of PUBLISHERS participation in
distributing a Program through the Express Revenue Network is proprietary to and owned by
the Express Revenue Network and/or its Advertiser(s). Such Customer Information is
confidential and may not be disclosed by you or used for any purpose by you except as may
be permitted by this Agreement or the Program Terms for any particular Program. Each Party
agrees to use the other Party's Confidential Information (as defined below) solely for the
purposes contemplated by this Agreement, and to refrain from disclosing the other Party’s
Confidential Information or the Company’s Advertisers’ Confidential Information (including
Customer Information) to any third-party, unless (a) any disclosure is necessary and permitted
in connection with the receiving party's performance of its obligations or exercise of its rights
under this Agreement; (b) any disclosure is required by applicable law; provided, that the
receiving party uses reasonable efforts to give the disclosing party reasonable advance notice
thereof so as to afford the disclosing party an opportunity to intervene and seek an order or
other appropriate relief for the protection of its Confidential Information from any
unauthorized use or disclosure; or (c) any disclosure is made with the consent of the
disclosing party. As used in this Agreement, “Confidential Information” means any and all oral
or written information that is identified as confidential and is provided by one Party to the
other, or information which, under the circumstances surrounding the disclosure, reasonably
ought to be treated as confidential.
20) NON-CIRCUMVENTION: During the term that this Agreement remains effective and for a
period of six (6) months after termination of this Agreement for any reason, PUBLISHER agrees
and acknowledges that, it will not directly engage, contract with, work with, license with, enter
into and/or execute any performance-based online advertising and/or marketing relationship
with any ADVERTISERS within the Express Revenue Network. In the event an PUBLISHER
contacts ADVERTISER directly and ADVERTISER determines then or at any later time that such
PUBLISHER is an PUBLISHER within the Express Revenue Network, then ADVERTISER shall
notify such PUBLISHER immediately that the PUBLISHER must work with ADVERTISER through
the Express Revenue Network and immediately halt any marketing campaigns being
conducted directly through such PUBLISHER. ADVERTISER understands and agrees that if
ADVERTISER violates its obligations to Express Revenue Network that Express Revenue will
suffer irreparable injury and shall be entitled to: (a) liquidated damages in the amount of fifty
percent (50%) of the gross revenues resulting from sales conducted by ADVERTISER through
the advertising and/or marketing efforts of such other online interactive marketing service
providers or PUBLISHERS as described herein, (b) injunctive relief, and (c) any other remedies
available to Express Revenue at law or in equity.
21) DISCLAIMER OF WARRANTIES: Express Revenue Network PROVIDES ITS SITES AND
THE SITES OF ITS AFFILIATES AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF
ITS AFFILIATES AND PARTNERS, AS PERFORMED HEREUNDER, ON AN "AS IS," “WHERE IS” AND
"AS AVAILABLE" BASIS. Express Revenue Network 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.
22) LIMITATIONS OF LIABILITY: IN NO EVENT SHALL Express Revenue Network BE LIABLE
FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING,
WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT
LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST
DATA OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER
NO CIRCUMSTANCES SHALL Express Revenue Network BE LIABLE TO PUBLISHER OR ANY
THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS PAID BY Express Revenue
Network TO PUBLISHER DURING THE PRIOR THREE MONTHS.
23) MUTUAL INDEMNIFICATION: Each party agrees to indemnify, defend and hold
harmless the other party and its employees, agents, officers and directors, against any and all
claims, causes of actions, judgments, demands, damages, losses or liabilities, including costs
and expenses (including reasonable attorneys fees and costs of suit), arising out of or relating
to (a) any claim based upon infringement of copyright, trademark, patent, or trade secret or
other intellectual property right of any third party; (b) any claim, representation, or statement
made in the Advertisement; (c) any breach of any representation or warranty contained in this
Agreement.
24) DISPUTE RESOLUTION: If any dispute arises under this Agreement, the Parties agree to
first try to resolve the dispute with the help of a mutually agreed upon mediator in the
following location: State of Florida, Sarasota County, USA. Any costs and fees other than
attorneys’ fees associated with the mediation shall be shared equally by the parties. If it
proves impossible to arrive at a mutually satisfactory solution through mediation, the Parties
agree to submit the dispute to binding arbitration in the following location: State of Florida,
Sarasota County , USA. The Parties agree that the binding arbitration will be conducted under
the rules of the American Arbitration Association. Judgment upon the award rendered by the
arbitrator may be entered in any court with proper jurisdiction. If any litigation or arbitration is
absolutely necessary to enforce this Agreement or the terms thereof, the prevailing Party shall
be entitled to reimbursement by the other Party for reasonable attorneys’ fees, costs and
expenses. This Agreement will be governed by the laws of the State of Florida.
25) NO ASSIGNMENT: Neither Party shall have the right to assign or otherwise transfer its
rights and obligations under this Agreement except with the prior written consent of the other
Party; provided, however, that a successor in interest by merger, by operation of law,
assignment, purchase or otherwise of all or substantially all the business of a Party may
acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.
26) INDEPENDENT CONTRACTOR: Each party is an independent contractor. Except as set
forth in this Agreement, neither party is authorized or empowered to obligate the other or
incur any costs on behalf of the other without the party’s prior written consent.
27) SEVERABILITY: If any term, provision, covenant, or condition of this Agreement is held
by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the
Agreement shall remain in full force and effect and shall in no way be affected or invalidated.
28) AGREEMENT IN COUNTERPARTS: This agreement may be signed by Express Revenue
Network and PUBLISHER in counterparts, and facsimile signatures shall have the same force
and effect as an original signature.
29) FORCE MAJEURE: Neither Party will be liable for, or will be considered to be in breach of
this Agreement on account of, any delay or failure to perform as required by this Agreement
as a result of any causes or condition s that are beyond such Party’s reasonable control and
that such Party is unable to overcome through the exercise of commercially reasonable
diligence. If any force majeure event occurs (which shall include, without limitation, acts of
God, fire, explosion, vandalism, storm or other natural occurrences, any conflicting order,
direction, action or request of the United States government (including, without limitation,
state and local governments) or of any regulatory department, agency, commission, court,
bureau, corporation or other instrumentality, or of any civil or military authority, national
emergencies, insurrections, riots, wars, strikes, lockouts, work stoppages or other such labor
difficulties), the affected Party will give prompt written notice to the other Party and will use
commercially reasonable efforts to minimize the impact of such event. Notwithstanding the
foregoing, the Parties’ obligations to one another shall be excused and/or postponed during
and only for the duration of the applicable force majeure event and shall resume as soon as
practicable after the force majeure event has ended.
30) NO THIRD PARTY BENEFICIARIES: This Agreement is for the sole benefit of the Parties
to this Agreement and their successors and any permitted assigns, and nothing expressed or
implied in this Agreement shall give or be construed to give to any person or entity, other
than the Parties to this Agreement and their respective successors and assigns, any legal or
equitable rights.
31) NOTICES: Any notice, communication or statement (collectively, “Notice”) relating to this
Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in
person; (ii) upon transmission when delivered by verified electronic mail transmission; or (iii)
when delivered by registered or certified mail, postage prepaid, return receipt requested or by
a nationally recognized overnight courier service, to each Party at the address set forth in this
agreement or at such different address as may be designated by such Party by written notice
to the other Party.
32) TERMINATION: This Agreement may be terminated by either Party upon two (2)
business days notice, or without notice by the Express Revenue Network if Express Revenue
Network believes, in its sole discretion, that you have violated this Agreement (including any
representations and warranties herein), or any applicable law, rule, or regulation, or have
engaged in fraud. This Agreement shall terminate immediately upon the dissolution or
insolvency of either Party. Express Revenue Network reserves the right, in its sole and
absolute discretion, to terminate a campaign/offer program and remove any advertisements
at any time for any reason. Express Revenue also reserves the right to suspend or terminate
Your access to the Network at any time without notice due to fraudulent activity. Termination
notice may be provided via email, and will be effective immediately. All revenue due to
PUBLISHERS, subject to the terms of this Agreement, will be paid during the next billing cycle.
If PUBLISHER commits fraud or breaches this Agreement (as determined by EXPRESS
REVENUE NETWORK in its sole discretion) then payment is revoked as determined solely by
EXPRESS REVENUE. If your email address is not operative, Express Revenue Network will
attempt to send the termination notice email to your last known address or email address
shall suffice as termination notice hereunder.
33) CALIFORNIA RIGHTS POLICY.
A. California Consumer Privacy Rights (CCPA) California law provides California residents with
the following privacy rights: Right to access personal information: Individuals exercising this
right may request access to the categories and specific pieces of their personal information we
have collected in the prior 12-month period. Individuals exercising this right may receive their
personal information, when provided electronically, in a readily-useable format.Right to
deletion: Individuals exercising this right can ask us to delete their personal information we
have collected, though we may be permitted to retain personal information for certain
purposes.Right to disclosure: Individuals exercising this right can receive additional
information regarding the sources from which we collect information, the purposes for which
we collect and share personal information, the information of theirs we hold, and the
categories of parties with whom we share their information.Right to opt-out of sales: As
permitted by applicable law, we may share your personal information for monetary or other
valuable consideration (under California law, this is considered a “sale”). You may opt-out of
such a “sale” of your personal information to third parties. You can exercise your right to opt-
out buy following instructions in Section 5 (“OPT OUT”).Right to be free from discrimination:
Users may freely exercise these rights without fear of being denied goods or
services.Currently, this law specifically applies to California residents. If you are a resident of
California, and would like to exercise one of your rights, please contact us at
https://expressrevenue.com. You may designate an authorized agent to request the exercise
of one or more of these rights on your behalf. Please note all consumer requests are subject to
verification and there may be circumstances where we do not honor your request, as
permitted under the law. We may verify your request by asking for additional information
about how you found out about Express Revenue Network, who referred you to Express
Revenue Network, to make a request (which Publisher, Querier or Partner referred you to us)
and which websites you made the same requests to; and we will need to be able to verify with
that Publisher or Partner as to the validity of your request first. If you are using an authorized
agent, such requests are subject to the same criteria.
B. California’s “Shine the Light” Law Additionally, through California’s “Shine the Light” law,
California residents who provide personal information in obtaining products or services for
personal, family, or household use are entitled to either: (1) a list detailing the categories of
information shared and the entities to which such information was provided; or (2) to be
notified of a mechanism by which a consumer may opt-out of having their information shared
with third parties.
34) GDPR COMPLIANCE: PUBLISHERS who hold EU and UK ‘personal data' must fully comply
with the Privacy and Electronic Communications (EC Directive) Regulations 2003, the
Electronic EU Regulations 2011 and the EU General Data Protection Regulations (GDPR) For
more information on (GDPR) please visit - https://gdpr.eu
35) ENTIRE AGREEMENT: This constitutes the entire agreement between the parties and
supersedes any prior or inconsistent agreements, negotiations, representations and promises,
written or oral, regarding the subject matter. No modification, course of conduct, amendment,
supplement to or waiver of this Agreement or any provisions hereof shall be binding upon the
parties unless made in writing and duly signed by both parties.