One on One Marketing, Inc Advertising Campaign Terms & Conditions
1. Definitions:
1.1 “Campaign” means particular Affiliate promotion, offer, product, or service for which the User is submitting their information and for which One on One Marketing, Inc. (‘One on One”) is acquiring Leads.
1.2 “User” means the individual consumer, prospect, or customer who has expressed an interest or may be interested in the products or services marketed in a particular Campaign.
1.3 “Lead” means the information, sales, registration, or data, submitted by a User located in the United States for a particular Affiliate campaign.
1.4 “Lead Cap” means the maximum number of good Leads that One on One has agreed to pay for during a given Campaign.
1.5 “Company’ means the Company or entity entering into this agreement and that is supplying the Affiliate service or list for a particular Campaign.
1.6 “Affiliate Company” also known as an affiliate, publisher, lead source, vendor, Affiliate list owner, list manager.
1.7 “Rejected Leads” means Leads that are duplicate, that include invalid or bogus contact information, missing required fields, or improperly formatted data. Any leads that are not accepted by One on One’s clients are also considered rejected leads.
1.8 “Duplicate” means a lead whose phone number, address or Affiliate address is identical to that of another lead that was previously received by One on One’s client or is already present in One on One’s client’s database.
1.9 “Advertising Materials” means all of the creative materials including images, landing pages, headlines, email creative, subject lines, FROM lines, graphics, text, copy, links, etc. that will be displayed to the User. Definitions Specific to a Host and Post/Data Acquisition/Link Out/Redirect Campaign:
1.10 “Bad Data” or “Bad Leads” means Leads that include invalid contact info (inaccurate contact information, disconnected numbers, bounced email addresses, etc.), missing required fields, improperly formatted data, duplicate Leads, Leads that have misrepresented themselves on the form (for example, indicating they are a different age than they actually are), and Leads that deny having submitting their information after being contacted within 24 hours of allegedly submitting their information, among other types of Leads that One on One scrubs and determines in its sole discretion to be “Bad Leads.”
1.11 “Opt-In” means a type of Lead where the User gives explicit permission to be contacted by One on One for a Campaign. The User must either enter their information or pro-actively check a box on a web-form to submit their information for a Campaign.
1.12 “Lead Delivery” means the method that Leads are physically transferred to One on One for a particular Campaign. Examples include HTTP and Email.
2. One on One Materials:
One on One shall provide the Company with all the Advertising Material necessary to promote the Campaign set forth under the Insertion Order (“IO”). Company must first gain approval from One on One for any changes or modifications to Advertising Material prior to delivery. Prior to delivery, Company must deliver a final version/copy of the Affiliate creative to One on One for final approval – any campaign which is launched or sent without final approval from One on One will be considered void. One on One may refuse to accept any Advertising Material with or without cause.
3. Creative Guidelines:
All custom and modified creative must be approved by One on One prior to launching and must abide by the terms of this Agreement. If Company and/or Affiliate Company are found not abiding with this Agreement, Company and/or Affiliate Company may forfeit revenue from leads generated by such means. Any modifications to text ads must be approved by One on One. A One on One authorized contact should be notified in writing before the Company or Affiliate Company changes the placement and/or use of a creative campaign.
4. Campaign Restrictions:
The Company and/or Affiliate Company absolutely may not use any of the following in connection with any Advertising Materials:
a. No use of political or celebrity images in creative;
b. No use of incentivized search (unless expressly permitted by One on One), social, freebie traffic, or other artificial traffic;
c. No display of promotional materials, products, or services in relation to the Campaign;
d. No hidden up-sells; and
e. No use of an iframe in connection with the display of email creative unless expressly permitted by One on One.
5. Distribution Guidelines:
One on One reserves the right to limit or cancel the distribution of its Campaign with any particular lead provider or site or type of lead provider. Company agrees not to promote or advertise any campaigns on sites or pages promoting alcohol, tobacco, pornography or adult materials or sites. Company represents that it, all Affiliate Companies, and lead sources have agreed to abide by all applicable laws and to only supply Opt-In Leads. The Company may not use or resell any leads generated by a Campaign. The Company further agrees to pass all sub-ids and to provide unsubscribe links and suppression lists in connection with any email campaigns.
6. Company Privacy Policies:
Prior to the start of any host and post/data acquisition Campaign, Company will send One on One a master copy of the Privacy Policy used in all lead generation/co-registration promotions for the offer data of interest. Company will then be required to notify a One on One representative of any changes to any Privacy Policy. If Company does not notify One on One of any new changes to its Privacy Policy the most recent copy provided to One on One will be deemed the only valid source of reference in the case of future consumer complaints or acquisitions regardless of when a Lead was generated. The Company represents and warrants to One on One that all Privacy Policies covering a Campaign expressly permit the Company to share or sell Leads containing personally identifiable information to One on One.
7. Payment Terms:
Reports for final billable numbers for a given month during a Campaign will be sent to the Company between the 1st and 5th of the calendar month following the billing period (unless the 5th falls on a weekend or a holiday, in which case the report will be sent the following day or Monday). The reports will detail the numbers of acceptable Leads and Bad Leads for the applicable billing period, however only acceptable leads will be included in the final monthly billable numbers. The Company will not bill One on One for, and One on One will not be responsible to pay for, any good Leads provided by the Company in excess of the applicable Lead Cap. Additionally, One on One will not be billed for Bad Leads which will be excluded from any invoice. The Company will then invoice One on One for the number of accepted Leads reported to the Company by mailing a paper invoice to One on One and EMAILING AN ELECTRONIC COPY TO INSURE PROMPT PAYMENT. One on One will make payment to the Company within thirty (30) days of receipt of invoice.
8. Warranties:
Both parties represent and warrant that (a) it has the full corporate right, power and authority to enter into this Agreement and fulfill its obligations hereunder; to enter into and fully perform this Agreement; (b) the execution of this Agreement and performance of its obligations and duties hereunder does not conflict with any agreement to which either party is a party or by which it is otherwise bound or any applicable governmental law or regulation to which it is subject; (c) it is the owner of, or is licensed or otherwise authorized to use content provided for use by such party, including, but not limited to: (i) names and pictures of persons; (ii) copyrighted materials, trademarks, service marks, or depictions of trademarked goods or service marked services or other intellectual property of any kind; and (iii) testimonials or endorsements. The Company further represents and warrants that it will abide by the CAN-SPAM Act of 2003 and all other consumer protection and other applicable laws, rules, and regulations at all times during a given Campaign.
9. One on One Rights:
One on One reserves the right to contact a Lead by any method it chooses (including Affiliate, mail, phone, SMS messaging, etc.) as long as it is in compliance with all applicable laws. Although One on One shall have no obligation to pay the Company for Bad Leads, One on One shall own all Bad Leads and may attempt to contact such Bad Leads.
10. License Under Intellectual Property:
During the term of this Agreement, One on One hereby grants to Company a non-exclusive, non-transferable, limited license to use all of One on One’s trademarks, service marks, copyrights, and trade names solely to the extent that such licensed intellectual property is required to run a Campaign. Nothing in this Agreement shall transfer ownership of any intellectual property to the Company, nor grant any right or license other than the limited license stated above. Such License shall terminate immediately upon termination of this Agreement for any reason.
11. User Complaint Handling:
In the event that One on One receives a complaint from a particular User or agency regarding a Lead that was received from the Company under this Agreement, One on One may request additional information from the Company. The Company agrees to provide additional supporting information verifying that the Lead did Opt-In to a One on One campaign. The Company also agrees to supply, within 48 hours of receiving the request, the name, contact information, IP address, timestamp, and source URL where the User Opted-In for the Campaign. The Company understands that they will be liable and financially responsible for all accusations and litigation from any User or agency if the Company fails to meet these requirements.
12. Term and Termination:
The term of the Agreement will be for a period of one year. The term will automatically renew at the end of each one year period thereafter unless terminated by either party upon thirty (30) days notice prior to the end of the then current term. Notwithstanding the foregoing, One on One may terminate this Agreement and any Campaign upon forty-eight (48) hours written notice to the Company. Additionally, either party may terminate this Agreement or a Campaign immediately in the event of a material breach of this Agreement by the other party by providing written notice of such termination to the breaching party. One on One shall have no obligation to compensate the Company for any clicks or leads generated after the termination date. After the start of a Campaign, any 30-day period with no activity (generation of Leads or clicks) will automatically terminate this Agreement without need of notice to the other party.
13. Reporting:
13.1 PORTAL CAMPAIGN: All final reporting numbers will be based on One on One’s numbers. Final reporting numbers will reflect the gross Lead amounts, Bad Lead amounts, and net Lead amounts generated in the given month.
13.2 HOST AND POST/DATA ACQUISITION/LINK OUT/REDIRECT CAMPAIGN: Active Prospect’s Lead Conduit platform will be used for reporting all numbers. Reporting will be updated twice a week. One on One is not responsible for reports that are late or inaccurate resulting from the unavailability of or faulty performance of Active Prospect’s Lead Conduit.
14. Governing Law:
This Agreement shall be governed by and construed in accordance with the laws of the State of Utah, without reference to principles of conflicts of laws. The parties agree that the exclusive jurisdiction in which to resolve any dispute related to this Agreement shall be in the State of Utah or the home state where the defendant’s principal place of business is located.
15. Indemnity:
The Company shall and does hereby agree to defend, indemnify and hold One on One harmless for, from and against any and all claims, demands, actions, liabilities, judgments, losses and expenses (including attorneys’ fees, witness fees and court costs) incurred by One on One arising during or after the term of this Agreement as a result of the Company’s or any Affiliate Company’s (i) failure to observe their respective Privacy Policies, (ii) breach of this Agreement, (iii) taking any misleading actions to generate Leads during a Campaign, or (iv) violating any federal, state or local law, rule, or regulation in connection with a Campaign.
16. Entire Agreement:
This Agreement constitutes the entire agreement of the parties with respect to the subject matter thereof and supersedes and replaces all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter.
17. Relationship of Parties:
Both parties are independent contractors under this Agreement. Nothing contained in this Agreement is intended nor is to be construed so as to constitute One on One and the Company as partners, agents or joint venturers with respect to this Agreement.
18. Amendment; Waiver:
No modification of the Agreement or any IO shall be binding unless in writing and signed by both parties or emailed and acknowledged by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. No waiver by One on One of any term, provision or condition contained in this Agreement shall be deemed to constitute a waiver of the same or any other term, provision or condition with regard to subsequent events circumstances.
19. Notices:
Notices under this Agreement shall be in writing and shall be delivered by post, courier, or email to a business postal address, Affiliate address, or facsimile. In all cases future notices and amendments must be signed, returned, or replied to by the receiving party to be deemed valid.