OCEAN VIEW MEDIA PUBLISHER AGREEMENT FOR INBOUND CALLS/ CALL TRANSFERS
1. RECITALS. The following terms and conditions (referred to as the "Agreement") establish the relationship between you (referred to as "Publisher") and Ocean View Media (referred to as the "Company"), governing your access to and use of the Company's website, services, and additional products, sites, and services offered by the Company for Inbound Calls and Call Transfers (collectively referred to as the "Services"). By accessing or using the Services, Publisher agrees to abide by the terms outlined in this Agreement, which may be modified by the Company at any time and posted on its website. Publisher's participation is subject to approval by the Company, and the Company reserves the right to withhold or refuse approval at its discretion. Publisher is required to furnish a W-9 and similar information as a condition of approval. Once approved, Publisher's continued access to and participation in the Services is contingent upon ongoing compliance with the terms of this Agreement, the Offer, Company Policies, and any additional requirements communicated by the Company to Publisher.
2. DEFINITIONS.
2.1 “Advertising Content” means the advertising to be utilized and promoted by Publisher for the purpose of generating Inbound Calls and Call Transfers to be forwarded to Company, including any Scripts to be used by call centers or other parties engaged by Publisher to initially receive, screen and transfer “Calls”, as defined herein.
2.2 “Applicable Laws” includes but is not limited to Telemarketing and Consumer Fraud and Abuse Prevention Act 5 U.S.C. §§ 6101-6108 Federal Communications Act, Federal Trade Commission Act (including any regulations, directives or orders interpreting the same), US Foreign Corrupt Practices Act, Telephone Consumer Protection Act, 47 U.S.C. § 227 and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200) (“TCPA”), Children’s Online Privacy Protection Act (“COPPA”), the Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.), Fair Credit Reporting Act (15 U.S.C. 1681 et seq.), the FTC Telemarketing Sales Rule, 16 C.F.R § 310 et seq., Do Not Call Implementation Act (P.L.108-10, 117 Stat. 557), the Financial Services Modernization Act of 1999 (“Gramm–Leach–Bliley Act”), Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), applicable Federal Trade Commission implementing regulations and any and all foreign, federal and state deceptive trade practices legislation, California Consumer Privacy Act, California Privacy Rights Act and any supplemental legislation, and all other applicable domestic and foreign data protection and privacy laws, as may be amended from time to time, and any laws applicable in the jurisdictions in which Publisher operates or performs services for Offers.
2.3 “Call” means the action or actions performed by a consumer pursuant to an Offer which are derived from Inbound Calls and/ or Call Transfers provided by Publisher as set forth in the applicable Offer.
2.4 “Call Transfer” means a consumer that is transferred by Publisher to Company by telephone after the consumer is read a Script and expressly consents to be transferred to a qualified agent to discuss the product(s) or service(s), and that otherwise meets the criteria set forth herein and in an applicable Offer.
2.4 "Client" means an advertiser client of Company whose Call campaigns are made available to Publisher via the Services.
2.5 "Company Policies" means the Company Acceptable Use Policy and any other policies if applicable, set forth in the Tracking Platform.
2.6 “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, Call data, Clients, the Platform, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the Services.
2.7 “Fraudulent Calls” include, but are not limited to: (i) fraudulent calls as determined and reported by Clients; (ii) use of any incentives to procure Calls; (iii) providing Calls obtained other than through intended consumer action without prior written approval of Company (iv) Calls that are generated in violation of Applicable Laws (e.g. consumer data not acquired using TCPA compliant methods) (v) Use by Publisher of personal data to complete lead generation forms, use of fake redirects, automated software, and/or other fraudulent mechanisms, to generate Calls for the Offers, (vi) Coached Calls; (vii) Calls that have a Faked T-1 recordings; (viii) Calls that have a spoofed inbound number; and (ix) dropped calls after the social security number is given.
2.8 "Inbound Call” means a call initiated by a consumer to a designated telephone number provided by Company, which may include the use of interactive voice response (“IVR”) technology, automatic number identification (“ANI”) technology, or another industry accepted technology.2.9 "Offer" means a Call campaign published by Company within the Tracking Platform, on behalf of a Client, containing such additional terms and conditions as required by Client for the Call campaign which may include but is not limited to the terms under which Publisher will receive payment when an Offer’s requirements are fulfilled. Call Company shall not be required to pay for any Calls that do not meet the specifications of the Offer. Offer terms may also be included in an insertion order. 2.10 "Platform" is the Company website for the Services where Offers are made available to Publisher and Calls are recorded and tracked, and includes the Advertising Content, terms, policies, tracking system, data, reports and information relevant to the Call Offer.
2.11 "Posted Data Lead” means a real-time, posted record provided by Publisher to Company of the name and contact information of the consumer that has provided Valid Consent to be contacted about the product(s) and service(s) from the applicable Client and that otherwise meets any other criteria set forth herein or on an applicable Offer.
2.12 “Script” means, in cases where a Prospect is transferred to Company the script in which such consumer is asked for permission to transfer his or her call to Company.
2.13 “Valid Consent” prior express written consent by a consumer (as defined in 47 C.F.R. §64.1200(f)(9) and interpreted by regulatory and judicial opinions, as defined in Fla. Stat. § 501.059(g), and as contemplated by other federal, state, and local laws and regulations applicable to telephonic solicitation.
3. SERVICES.
3.1 License. The Company grants Publisher a revocable, non-transferable, non-sublicensable, non-exclusive limited license to utilize the Platform solely for the purpose of marketing or promoting Offers, in accordance with the terms outlined in this Agreement and the applicable Program Terms. Publisher may access the Platform solely via web browser, email, or any other method approved by the Company. Publisher agrees not to attempt in any manner to alter, modify, eliminate, conceal, or render inoperable or ineffective the Platform, including but not limited to tags, source codes, links, pixels, modules, or other data provided by or obtained from the Company, which enables the Company to measure ad performance and provide its Services.
3.2 Login. Upon approval by Company, the Publisher will be issued a unique username and password to access the Platform, neither of which may be used by any person other than the Publisher. Publishers may not sublease, rent, lease, sell, resell, outsource or service any Offer, to sub-Publishers without express written approval from Company. Publisher is responsible for any unauthorized use of its account in the Platform. If third parties are engaged by Publisher to generate Calls (provided that such third parties are approved in writing by Company), Publisher is responsible for the compliance of the approved third parties with the terms of the Agreement and shall fully indemnify Company on behalf of any such third party.
3.3 Publisher General Requirements. Publisher will be solely responsible for the development, operation, and maintenance of the Publisher website and for all materials that appear on the Publisher website, as well as for monitoring and tracking its TCPA compliance. Such responsibilities include, but are not limited to, the technical operation of the Publisher website and all related equipment, the accuracy and propriety of materials posted on the Publisher website; ensuring that materials posted on the Publisher website do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal.
3.4 Company Disclaimers. It is understood that participation in distributing Offers in the Platform is not an endorsement by Company of any Client. Company operates the Platform and provides the Offers as a neutral host. Company is not responsible or liable for the acts, omissions, agreements or promises of or by any Client or Publisher.
3.5 Data Ownership. Company owns all rights, title, and interest, to links and user data collected and derived through the activities of Publisher pursuant to this Agreement.. Any data derived by data mining tools imbedded in links by Company shall be the sole property of Company. If Company shares such data with Publisher to help optimize the quality of Calls generated by Publisher, Publisher agrees that this data will be used solely by Publisher for the purposes for which it is provided to Publisher, and will not be shared with any other third party or entity, without the written approval of Company. In addition, Publisher acknowledges that all non-public information, data and reports received from Company hereunder including all personal information about any person who makes a Call delivered to Company as part of the Services hereunder is proprietary to and owned by Company or its Client(s).
3.6 Advertising Content. Publisher shall use Advertising Content: (i) in exactly the form that it is provided to Publisher by Company via the Platform without modification, unless changes are approved in writing by Company; and (ii) only in the manner expressly permitted by the Offer and only until the Offer expires or until requested by Client or Publisher, in which case Publisher shall discontinue such use within 24 hours of request.
3.7 Call and SMS Requirements. Publisher may only engage in call or text requests with consumers when permitted by the applicable Offer and who have a) specifically requested to be contacted by phone or SMS regarding the products or services provided by the applicable Client’s Offer, b) provided all required information pursuant to the Offer and c) have provided Valid Consent). Appropriate disclosures must be present on any of its websites and/or landing pages where consumer information is collected. When the foregoing conditions are met, that information may be provided by Publisher to the applicable Client as a Call or SMS transfer. Call transfers shall be provided promptly as a live phone call via Company’s or Client’s platform as applicable for inbound calls. SMS responses shall be entered upon receipt into the applicable platform (as designated by Client or Company), as well as any do not call and do not contact requests. Publisher shall not knowingly contact consumers who provided Valid Consent more than 90 days prior to intended contact by Publisher. Publisher shall immediately abide by any do not call or do not contact requests received from consumers. Publisher is prohibited from using any automatic telephone dialing systems, including robocalls and robocall “blasts,” or any other automated system to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or any service for which the receiving party is charged for the calls as methods for generating Calls and such methods are considered fraudulent. Publisher shall not place or cause to be placed any calls outside of the hours established by federal time-of-day requirements. For any outbound calling, Publisher shall retain the records of all necessary consents for such activities in compliance with all Applicable Laws, and shall maintain written and recorded evidence thereof for a minimum of five (5) years following creation of same, and provide such records to Company and/or its Client within ten (10) business days of receipt of a request at any time during that period.
4. TRACKING AND PAYMENT.
4.1 Tracking and Tags. All reporting of Calls shall be undertaken by Company. Payment shall be based on Calls as recorded in Company’s Platform unless otherwise stated in the Offer. Publisher must insert Company’s tracking code or third party tracking service as directed by the Offer in order to have their Calls tracked for payment. Publisher shall not attempt to reverse engineer, decompile, disassemble or otherwise gain access to any other data or account , or use tracking for any other purpose. Publisher shall not attempt in any way to alter, modify, eliminate, conceal or otherwise render inoperable or ineffective any tags, source codes, links, pixels, modules or other data provided by or obtained from Company. All Tracking information is subject to Confidentiality obligations.
4.2 Payment. Publisher will be paid per the Call requirements of the applicable Offer, as calculated by Company pursuant to its tracking system and recorded in the Platform. Unless otherwise stated per the terms of the applicable Offer, Payments to Publisher will be based upon the records kept by Company. Publisher is responsible for paying all Taxes applicable to Publisher and deductions will not be made by Company on Publisher’s behalf. Company shall pay Publisher when the amount due and payable to Publisher exceeds Five Hundred ($500.00) US Dollars. Company reserves the right to reduce any payments owed to Publisher as a consequence of Fraudulent Traffic. Any disputes regarding the invoice provided by Company needs to be submitted in writing by Publisher within fifteen (15) business days of receipt of the applicable invoice, otherwise the information will be deemed accurate and accepted as such by Publisher. Company will not pay for any Calls that occur before the Offer is initiated or after it expires or terminates. Company will not be responsible to compensate Publisher for Calls that are not recorded due to Publisher’s error. All undisputed payments due to Publisher upon termination will be paid during the next billing cycle.
5. FRAUD. Company may at any time audit Publishers for compliance purposes, either on its own or using third party services. Publisher agrees to provide Company with any reasonable information necessary to conduct an investigation into the Publisher's compliance with Applicable Laws and this Agreement. If Company determines, in its sole discretion, that the Publisher has engaged in any activity that Company considers fraudulent or which might bring the reputation or standing of Company into disrepute either with the general public or with Clients or potential Clients of Company, Company may but will not be obligated to: (a) suspend or close the Publisher's membership in the Service, without notice; and (b) release to any third party, information relating to the identity and location of Publisher if required to do so in order to enforce these terms and conditions. In the event of a suspension or closure in accordance with this section, Publisher will forfeit its entire commission for all Offers, and its account may be terminated. In addition, in the event that Publisher has already received payment for fraudulent activities, Company reserves the right to seek credit or remedy from future earnings, or to demand reimbursement from Publisher.
6. MUTUAL INDEMNIFICATION. Both Publisher and Company mutually agree to indemnify, defend, and hold harmless each other, as well as their respective affiliates, shareholders, directors, officers, and employees, from and against any and all claims, actions, losses, liabilities, damages, costs, and expenses (including reasonable attorney’s fees and expenses) arising out of or related to any breach of this Agreement by either party, including representations and warranties, any act or omission of either party, or either of the foregoing by anyone for whom either party is in law responsible, including third parties fulfilling obligations of either party on behalf of either party, if applicable. The obligations of both Publisher and Company to defend and indemnify as set out in this paragraph will survive termination of this Agreement for any reason and will not be otherwise limited by any other term or condition of this or any Agreement. Either party may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by the other party. The party assuming defense and control may participate in the defense of all claims as to which it does not assume defense and control, and the other party shall not settle any such claim without the prior written consent of the party assuming defense and control. Clients are intended third-party beneficiaries of this clause.
7. REPRESENTATIONS AND WARRANTIES.
7.1 Mutual. Each party represents and warrants to the other party that it has the full right, power, legal capacity and authority to enter into, deliver and fully perform under this Agreement; and that the execution, delivery, and performance of this Agreement will not result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law to which either party is bound, and its performance hereunder is in compliance and will remain in compliance with all Applicable Laws.
7.2 Publisher. Publisher represents and warrants that it has full and complete authority to provide the Calls and to acquire the Calls, there are no existing, pending or threatened claims or actions pending against the Publisher; none of the Publisher's websites contain false or deceptive advertising or any machine readable code, including without limitation any virus, Trojan horse, work or other self-executing program; its websites, marketing and other practices comply with all Applicable Laws; and it owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on or through its website or websites; it will comply with the terms of this Agreement, and the Company Policies; it will not, without the express written consent of Company, use or permit any person to use any third-party trade-names or trade-marks; it will not publish on any website or send in any any content which, in the opinion of a reasonable person, is deceitful, defamatory, abusive, violent, prejudicial, obscene, pornographic, or which otherwise would be illegal;, it will be responsible for the development, operation and maintenance of its website or websites. It shall use appropriate physical, technical and organizational measures to protect personal information against accidental loss or unauthorized access, use, disclosure, alteration, or destruction, and shall notify Company promptly in writing of any security breach regarding such personal information, and shall cooperate reasonably with Company in complying with any requests from consumers for disclosure, correction and/or deletion of such personal information.
8. DISCLAIMER AND LIMITATION OF LIABILITY. Policies, specifications, and/or recommendations from Company with respect to Publisher websites, and/or marketing channels used by Publisher should not be construed as legal advice, or as sufficient guidelines to ensure that such websites, and/or marketing channels comply with Applicable Laws. Company assumes no obligation and hereby disclaims any liability for Publisher's use of and/or reliance upon any such Company Policies, specifications, and/or recommendations or any unapproved Advertising Content. Company will not be liable for any failure or delay resulting from any governmental action, fire, flood, insurrection, pandemic, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, actions or inaction of Publisher or third parties, Publisher's equipment or software and/or any third party equipment or any other condition affecting production or delivery in any manner beyond the control of Company. Company cannot guarantee that there will be no downtime or other interruptions in Services. The links, Platform, Offers, and any other materials provided to Publisher are provided "as is," without any warranty of any kind. Company makes no warranties, express or implied, by operation of law or otherwise, and expressly disclaim all warranties, express, implied or statutory, including, without limitation: a) any warranties of title, noninfringement, merchantability or fitness for a particular purpose; (b) that there are no viruses or other harmful components therein; (c) that the 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.
9. NON-CIRCUMVENTION. Throughout the term of this Agreement and for a period of six (6) months following termination for any reason, both Publisher and Company agree that they will not directly or indirectly solicit, engage, contract, license, or work with any Client of the other party without the prior written approval by an authorized party at the respective party. Both Publisher and Company agree that the other party shall be entitled to injunctive relief precluding them from taking or continuing any action or conduct in violation of this provision, to be issued by any court of competent jurisdiction upon a showing of any such violation without posting bond or required demonstration of monetary damages. Both Publisher and Company agree and understand that the other party has incurred significant expense forming its network and in providing services for the benefit of its Clients, and both agree and understand that in the event of a breach by either party of this section, the breaching party shall pay the other party an amount equal to the other party's total profits for the preceding eighteen (18) months generated by the Offers for such Client.
10. DUTY TO DISCLOSE INFORMATION. Each party agrees to use the other party's Confidential Information solely for the purposes contemplated by this Agreement, and shall not disclose the other party's Confidential Information to any third-party, unless: (i) disclosure is necessary and permitted in connection with the receiving party's performance of its obligations or exercise of its rights under this Agreement; (ii) any disclosure is required by applicable laws; provided that the receiving gives the disclosing party reasonable advance notice thereof so the disclosing party has an opportunity to seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure; or (iii) any disclosure is made with the consent of the disclosing party. Notwithstanding the foregoing, Publisher agrees that Company may release Publisher’s personal and/or otherwise Confidential Information to a Client, agency, legal or regulatory authority, person or entity as needed to fulfill its business obligations and relating to investigations, claims or actions that Publisher has violated this Agreement or any Applicable Laws. Neither party may divulge Confidential Information to a government entity unless and until notice is provided to other non-disclosing party in sufficient time to seek injunctive relief or protective order from the appropriate legal institution. If instructed to do so by Company and/or if Publisher shall be terminated by Company, Publisher will immediately destroy and discontinue the use of any Company data, including Services Data, and any other material owned by Company or the Clients.
11. TERM AND TERMINATION. This Agreement commences upon Publisher’s acceptance into the Platform. The Agreement may be terminated by either party a) at any time, with three (3) business days’ notice to the other party or b) in the event of a material breach of this Agreement by either party, immediately upon written notice to the other party. Publisher must immediately cease all advertising activities upon termination. Notwithstanding termination of this Agreement for any reason, the Publisher covenants and agrees that it will continue to be bound by the terms and conditions set out in this Agreement.
12. GENERAL. The Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the United States and the State of California, excluding its conflict of law rules. The Parties irrevocably submit to the exclusive jurisdiction of the State of Delaware, excluding its conflict of law rules., with respect to all disputes arising out of or in connection with this Agreement or in respect of any legal relationship associated with or derived from this Agreement. Company may assign this Agreement without the Publisher's prior consent. The Publisher may not assign this Agreement without the express written consent of Company. Any notice or other communication permitted or required by this Agreement will be in writing and given by personal delivery or sent by email to the receiving party at the address provided to Company by Publisher in the Platform, and if to Company at melissa@oceanview.media with a copy by mail to the Ocean View Media address in the Platform. Any such Notice will be deemed to have been received on the date on which it was delivered or sent by email. No term or condition of this Agreement will be deemed waived and no breach excused, unless such waiver or consent excusing the breach is in writing and signed by both parties. In the event that any term, covenant or condition of this Agreement is declared indefinite, invalid, illegal or unenforceable by a court having jurisdiction, then this Agreement with respect to the remaining terms, covenants or conditions will continue in force. This Agreement will insure to the benefit of and be binding upon the respective successors, heirs and assigns of both Company and the Publisher. The parties agree that Company is acting as an independent contractor in performing the Services and that the relationship between the Company and Publisher shall not constitute a partnership, joint venture or agency. Neither Company nor any of Company’s employees or agents (collectively referred to herein as the “Employees”): (i) is an employee, agent or legal representative of Publisher, or (ii) shall have any authority to represent Publisher or to enter into any contracts or assume any liabilities on behalf of Publisher. Company retains all the rights and privileges of sole employer of its Employees, including, without limitation, the right to control, hire, discipline, compensate and terminate such Employees. Neither Company nor any of its Employees shall have any right to receive any employee benefits as are in effect generally for Publisher employees. Publisher may not make any mention of Company or any Company Client in any publicity materials advertising or otherwise presenting information on Company including without limitation listing Company or any of its Clients in its client lists or on its websites without the written consent of Company. Any terms which by their nature are intended to survive termination shall survive
This Agreement and the applicable Offer terms constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes any previous or contemporaneous representations, negotiations, understandings, and agreements, oral or written.