CPA TERMS

1. Definitions. (a) “Acquisition” has the meaning set forth on the Invoice. (b) “Agreement” shall mean these Terms and Conditions together with the Invoice. (c) “Client” has the meaning set forth on the Invoice. (d) “Client Website” means the Internet page at the URL provided by Client to Digital Traffix for inclusion in the Copy. (e) “Confidential Information” means any non-public information provided by one party to the other during the Term. For purposes of this Agreement, Confidential Information shall not include information the receiving party can document: (i) was or has become readily available to the public without restriction through no fault of the receiving party, its employees, or its agents; (ii) was received without restriction from a third party lawfully entitled to possess and disclose such information; (iii) was rightfully in possession of the receiving party without restriction prior to the other party’s disclosure of such information to the receiving party; or (iv) was disclosed pursuant to the written consent of the other party. (f) “Copy” means the content of the advertisement that Client provides to Digital Traffix for email broadcast hereunder. (g) “Invoice” means the Digital Traffix invoice signed by Client, and specifically incorporating these Terms and Conditions therein. (h) “Opt-In Email Recipient” means a person that has consented to receive promotional information about products and services via e-mail by subscribing at an Digital Traffix or an Digital Traffix affiliate Internet website. (i) “Privacy Header” means a notice to recipients of the Copy that informs the recipient: (i) of the location of such recipient’s subscription to Digital Traffix’s or Digital Traffix’s affiliate’s opt-in database; and (ii) of an electronic method by which such recipient can unsubscribe from future broadcasts. The Privacy Header shall also include a mechanism by which recipients may electronically communicate to Digital Traffix the desire to unsubscribe.
2. Term. This Agreement shall become effective on the date that Client signs the Invoice and, unless otherwise stated on the Invoice, shall continue in effect for six (6) months.
3. Copy Delivery and Approval. Client shall deliver the Copy to Digital Traffix not later than three (3) days prior to the desired e-mail broadcast date. Digital Traffix reserves the right to reject any Copy that promotes or depicts illegal, illicit, offensive, or otherwise inappropriate products, services, images, or information. Digital Traffix shall not be liable or otherwise legally responsible for any failure to advise Client of the nature of any Copy.
4. Fulfillment. Digital Traffix shall deliver an e-mail message to Opt-In Email Recipients on behalf of Client. Such e-mail message shall contain the Copy, including a tracking URL that links to the Client Website, and a Privacy Header. Digital Traffix shall remove recipients that have communicated a desire to unsubscribe from Digital Traffix’s database of Opt-In Email Recipients. Except as otherwise expressly provided in the Invoice, the timing and frequency of the Client broadcasts, as well as the number and selection of the Opt-In Email Recipients that will receive such broadcasts, shall be at Digital Traffix’s sole discretion.
5. Tracking and Reporting. Except as otherwise expressly provided in the Invoice, Client shall provide to Digital Traffix a monthly report, certified by signature of an officer of Client, detailing the number of Acquisitions. Client shall keep, in its usual place of business, books of accounts and other documents relating to its receipt and fulfillment of Acquisitions that may be necessary or proper to conveniently ascertain the amounts payable to Digital Traffix under the terms of this Agreement. Client shall permit an Digital Traffix authorized representative to inspect such books of accounts and other documents during regular business hours upon ten (10) days’ notice from Digital Traffix. Such inspection shall be at Digital Traffix’s sole expense, unless the inspection reveals that the amounts due Digital Traffix exceed the amounts actually reported as due by Client (“Discrepancy”) by five percent (5%) or more, in which case Client shall pay to Digital Traffix the costs of the inspection revealing the Discrepancy. For any Discrepancy, Client shall pay to Digital Traffix the full amount of the underpayment, together with interest thereon at the rate of twelve percent (12%) per annum.
6. Unjust Enrichment; Liquidated Damages. Client agrees that it shall seek to benefit from the Client broadcast only: (a) to increase exposure of the Client Website, the products and/or services advertised in the Copy, and Client’s marks; and (b) to generate Acquisitions. Accordingly, Client warrants that during the Term of this Agreement, the Client Website shall not contain popup windows, banner or other advertisements, sweepstakes registration boxes, newsletter subscription boxes, phone numbers, hyperlink(s) to a web page containing any of the foregoing, or any other method of gathering e-mail addresses or generating sales (that do not qualify as Acquisitions hereunder) from recipients of the Client broadcast. Client agrees that should Client breach this warranty, Digital Traffix may, in its sole discretion, impose liquidated damages on Client in the amount of twenty-four cents ($.24), or if less, Digital Traffix’s then current undiscounted CPM broadcast rate for each Opt-In Email Recipient to which Digital Traffix broadcasts under this Agreement. Such liquidated damages shall be instead of any fees payable under this Agreement.
7. Maintenance of the Client Website. Client shall make a good faith effort to ensure the Client Website remains fully operational and accessible to recipients of the Client broadcasts during the Term of this Agreement. Further, during the Term of this Agreement, Client shall make no changes to the Client Website or to the products and services offered on the Client Website that would likely result in a reduction of compensation payable to Digital Traffix hereunder without Digital Traffix’s express prior written consent.
8. Hardware, Software, and Database. Digital Traffix shall obtain and maintain the computer hardware and software necessary to perform its obligations under this Agreement. Such hardware and software will not be dedicated hardware and software. Nothing in this Agreement shall grant to Client any right, title, or interest in or to Digital Traffix’s hardware, software, or Opt-In Email Recipient database.
9. Payment. Client shall pay to Digital Traffix a fee as set forth in the Invoice. Unless otherwise specified in the Invoice, Client shall pay each invoice in full within thirty (30) days of receipt. If Client fails to timely pay the full amount of the charges detailed in any Digital Traffix invoice as set forth herein, Client agrees to pay all of Digital Traffix’s costs of collection of such charges, including without limitation Digital Traffix’s reasonable attorneys’ fees, and Client agrees to pay interest on the amount of underpayment/nonpayment at the rate of twelve percent (12%) per annum.
10. Indemnification by Client. Client shall indemnify, defend, and hold harmless Digital Traffix from and against any and all third party claims, suits, and liabilities (including all reasonable costs, expenses, and attorneys’ fees actually paid) arising from or in connection with: (a) the products and/or services offered/advertised on the Client Website; (b) the content of the Copy; (c) the content of the Client website; or (d) Client’s breach of any of its obligations, representations, or warranties under this Agreement. Digital Traffix shall promptly notify Client in writing of all such claims and shall accommodate Client’s reasonable requests for cooperation and information. Digital Traffix shall agree to Client’s sole control over the defense and any settlement of such claims.
11. Indemnification by Digital Traffix. Except for claims indemnified by Client pursuant to Section 10 above, Digital Traffix shall indemnify, defend, and hold harmless Client from and against any and all third party claims, suits, or liabilities (including all reasonable costs, expenses, and attorneys’ fees actually paid) arising from or in connection with: (a) Digital Traffix’s fulfillment of the Client broadcasts; or (b) Digital Traffix’s breach of any of its obligations, representations, or warranties under this Agreement. Client shall promptly notify Digital Traffix in writing of all such claims and shall accommodate Digital Traffix’s reasonable requests for cooperation and information. Client shall agree to Digital Traffix’s sole control over the defense and any settlement of such claims.
12. No Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, Digital Traffix MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE EMAIL BROADCASTS. Digital Traffix DISCLAIMS ANY WARRANTIES THAT COULD BE IMPLIED IN CONTRACT, IN LAW, OR IN EQUITY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, OR PERFORMANCE, OR ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
13. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE LOSS, DAMAGE, OR EXPENSE (INCLUDING LOST PROFITS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR LIQUIDATED DAMAGES UNDER SECTION 6 AND INTEREST OR COLLECTION COSTS UNDER SECTION 9 OF THESE TERMS AND CONDITIONS, THE LIMIT OF EITHER PARTY’S LIABILITY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR ANY AND ALL CLAIMS RELATED TO THIS AGREEMENT SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAYABLE TO Digital Traffix UNDER THIS AGREEMENT.
14. Force Majeure. Neither party shall be liable for delays or nonperformance of this Agreement if such delay or nonperformance was caused by: (a) act of God, act of war, strike, fire, natural disaster, or accident; (b) lack of availability of materials, fuel, or utilities; or (c) any other cause beyond such party’s control.
15. Assignment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party.
16. Relation of the Parties. The parties are independent contractors. There is no partnership, agency, or joint venture relationship between them.
17. Confidentiality. For a period of three (3) years, beginning on the date client signs the Invoice, each party will keep strictly confidential all Confidential Information disclosed by the other party, except to the extent an applicable governmental law, order, decree, regulation, rule, or process requires disclosure. In the event of such required disclosure, the receiving party shall provide written notice thereof to the disclosing party as soon as reasonably possible, and shall reasonably cooperate with the disclosing party in resisting the disclosure of or obtaining confidential treatment for such Confidential Information.
18. Applicable Law, Jurisdiction, and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without reference to principles of conflict of laws. The exclusive jurisdiction and venue for any proceeding brought pursuant to this Agreement shall be Palm Beach County, Florida.
19. Entire Agreement. Except as expressly modified or supplemented by a writing executed by both parties on or after Client signs the Invoice, the provisions of these Terms and Conditions and the Invoice are the only representations, warranties, and understandings between the parties with respect to the products and/or services described in this Agreement. The waiver of any breach or default will not constitute a waiver of any other right or of any subsequent breach or default.
20. Severability. Should any provision of this Agreement be found invalid or unenforceable, all such provisions are to be enforced to the maximum extent permitted by law, and beyond such extent shall be deemed severed from this Agreement without affecting the validity or enforceability of any other provision.
21. Headings. The headings and captions in these Terms and Conditions are for convenience only and are not to be used to construe the meaning of the provisions of these Terms and Conditions.