Advertiser Terms and Conditions | Aragon Advertising

These Aragon Advertising Advertiser Terms and Conditions (these “Terms and Conditions“), effective as of the date of the first signed Insertion Order (“Effective Date“), sets forth the terms governing the relationship between Aragon Advertising, LLC, a New York limited liability company with its principal business location at 66 Mineola Avenue, #1355 Roslyn Heights, NY 11577 (“Aragon“), and the advertiser identified in the applicable Insertion Order (“Advertiser“), in connection with the advertising and marketing services provided to Advertiser by Aragon and Aragon’s advertising network (“Network“) of third-party affiliates (“Affiliates“). If Advertiser is an agency contracting on behalf of an advertiser, any reference to “Advertiser” refers jointly to the agency and the underlying advertiser. Aragon and Advertiser are referred to herein individually as a “Party” and collectively as the “Parties.”

The services described in these Terms and Conditions are further detailed in one or more applicable Insertion Orders for Aragon Advertising and/or Aragon Premium services, each of which is incorporated herein by reference. Together, these Terms and Conditions and any applicable Insertion Orders form the complete agreement between the Parties (the “Agreement“). As of the Effective Date, this Agreement supersedes all prior or contemporaneous agreements, communications, and understandings, whether verbal or written, between the Parties.

1. Insertion Orders and Campaigns

Neither Advertiser, nor any portion of its website and/or Creative Materials, is the subject of any ongoing and undisclosed investigation by any local, state, federal or international regulatory or quasi-legislative regulatory authorities. Advertiser shall promptly notify Aragon if it becomes the subject of a local, state, federal or international regulatory investigation or enforcement action, whether related to a Campaign or not;
For CPA Campaigns, the Creative Material and/or the landing page from where an action is completed (for example, the Advertiser website page where a consumer is directed when the consumer clicks on the creative, fills in a registration form or takes a similar action), shall contain a prominent link to Advertiser’s privacy policy, which policy provides, at a minimum, adequate notice, disclosure and choices to consumers regarding Advertiser’s use, collection and disclosure of their personal information, and Advertiser shall comply with such privacy policy;
For Campaigns involving incentivized offers (e.g., offers where a consumer is provided something of value in exchange for either providing their personally identifiable information (“PII”) and/or agrees to receive a product or service on a “free trial” basis, Advertiser shall ensure proper registration and prevent multiple submissions from the same consumer;
If Advertiser has selected “email” as a promotion type, then Advertiser represents, covenants and agrees as follows:
- Advertiser shall be solely responsible for creating and maintaining a suppression list with respect to Advertiser and its affiliates. Advertiser shall provide an updated suppression list to Aragon not less than once a week to ensure that offers are not emailed to persons that have unsubscribed or opted out from receiving such offers. If no such opt-out email addresses are supplied by Advertiser, Aragon may conclude that no such addresses exist;
- Advertiser has maintained, and shall continue to maintain, all suppression files secured with a reliable seeding protocol to ensure that all persons who have opted-out of receiving emails from Advertiser and/or its affiliates are not emailed under the relevant IO. Advertiser may choose to outsource suppression security to a third-party. Advertiser shall provide Aragon with a prompt report of any suppression failures, including the date, email address(es), an offer associated with such mailing, promptly following Advertiser obtaining knowledge that the mailing’s suppression security has been compromised;
- all Creative Materials, including, without limitation, email based Creative Materials supplied by Advertiser shall comply with applicable Laws; and
- Advertiser shall cause a valid physical postal address for Advertiser to appear in all email based creative content, along with a functioning unsubscribe link (such unsubscribe link must remain active for at least thirty (30) days after email delivery). Aragon shall have the right, but not the obligations to add such addresses should Advertiser fail to include same. Aragon may use Advertiser’s address appearing on the applicable IO, unless another valid address is acceptable to Aragon;
Prior to loading any computer program onto an individual’s computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are lawfully disclosed in Advertiser’s privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;
It shall fulfill all the commitments made in the Creative Materials; and
It shall implement such administrative, physical, and technical security measures as required by applicable laws, rules, regulations and ordinances as necessary, to ensure the secure handling, transmission, storage, and disposal of any “non-public personal information” which Advertiser holds or handles.

2. Affiliate Network

Advertiser acknowledges and agrees that Aragon has the right to subcontract its obligations under this Agreement through its Network of Affiliates, including the right to grant sublicenses in the Creative Materials, solely for the purpose of providing the Services.
Aragon shall not be obligated to investigate or resolve any claim or dispute between Advertiser and any Affiliate, or other third-party, whether such claim or dispute involves the Creative Materials, the Services, this Agreement, or any other matter. Aragon shall not be held liable or responsible for any actions or inactions of Affiliates.

3. Creative Materials

In connection with the Services, Aragon shall conduct Campaigns with Advertiser, during which Aragon will distribute proprietary advertising materials provided by Advertiser (“Creative Materials“). Such Creative Materials may include, without limitation, in-app, mobile web, banners, buttons, text links, clicks, co-registrations, pop-ups, pop-unders, emails, social media, graphic files, websites and similar online media. Applicable Creative Materials shall be provided within two (2) business days after execution of an IO.
For the term of the Agreement, Advertiser hereby grants to Aragon a non-exclusive, royalty-free, worldwide, revocable, sub-licensable license to: (a) use, perform, display, reproduce, transmit, modify, copy and distribute all the Creative Materials delivered hereunder in accordance with the terms of the Agreement; and (b) use all associated Advertiser intellectual property in connection therewith. Advertiser represents and warrants that it has all necessary rights in the Creative Materials and has the legal authority to grant the licenses and clearances set forth herein, and to permit the uses set forth in an IO. Title to and ownership of all intellectual property rights of all Advertiser provided Creative Materials and associated Advertiser intellectual property shall remain with Advertiser or its third-party licensors, other than those portions that Aragon may prepare on Advertiser’s behalf. Aragon does not represent or warrant that Creative Materials that it may prepare on Advertiser’s behalf are legally compliant. Aragon assumes no obligation and hereby disclaims any liability for Advertiser’s use of and/or reliance upon such Creative Materials.
Advertiser may not alter, modify or otherwise change the Creative Materials, or any creative content-related feature, in any manner after submission to Aragon for approval without Aragon’s prior written consent. If Advertiser does not obtain Aragon’s consent prior to modifying the Creative Materials, then: (a) Aragon can immediately terminate or suspend this Agreement; and (b) Advertiser shall promptly pay Aragon an amount based upon the average conversion rates of the applicable Campaign prior to such modifications, as solely and reasonably determined by Aragon, for the period commencing from the time of the modification until such modifications are fully corrected to the reasonable satisfaction of Aragon.
Unless otherwise specified in an IO, Advertiser shall maintain sole responsibility for Creative Materials provided to Aragon under this Agreement. Advertiser acknowledges that Aragon is a mere passive conduit for the distribution of the Creative Materials with no responsibility to review the Creative Materials for accuracy or compliance with Laws. Aragon reserves the right, in its sole discretion and without liability, to (a) refuse any Creative Materials, or to cancel or remove any Creative Materials and/or Campaign that does not conform to every term, requirement, instruction, method, and guideline set forth in this Agreement, (b) reject, pause, omit, exclude or terminate any Creative Materials and/or Campaign for any reason at any time, with or without notice to Advertiser, and whether or not such Creative Materials were previously acknowledged, accepted or published. Except as otherwise provided and subject to any requirement specifically set forth in the applicable IO, Aragon and/or its Affiliates shall have the exclusive right to determine the timing, positioning, placement, and frequency and manner of distribution of the Creative Materials. Advertiser agrees that where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Network” or similar designation is specified in the applicable IO, the Creative Materials may appear at any point of placement and/or distribution that Aragon and/or its Publishers may determine, in their respective sole discretion.
Aragon may require Advertiser, at Advertiser’s expense, to provide substantiation of any advertising claims Advertiser makes in any Creative Materials. Advertiser’s failure to provide adequate substantiation shall constitute a material breach of this Agreement. Aragon also reserves the right to demand third-party verification for any claims made in any Creative Materials and to terminate this Agreement if such verification is not promptly provided or is unsatisfactory, in Aragon’s sole discretion.

4. Leads

In connection with leads and CPA-based Campaigns, Advertiser shall pay Aragon for each valid lead/acquisition (“Valid Lead“) delivered, including, without limitation consumer information, inbound telephone calls and/or telephone call transfers. Any/all “approved website(s),” as applicable, shall be set forth in the applicable IO. A “Valid Lead” means an individual person that: (a) is not a computer-generated user, such as a robot, spider, computer script or other automated, artificial, or fraudulent method designed to appear like a live person; (b) has not provided stolen or unauthorized consumer credit card information; and (c) has submitted information that meets all of Advertiser’s criteria as set forth in the applicable IO. Advertiser shall be exclusively responsible for confirming that the information collected for any Valid Lead corresponds to the criteria in the applicable IO.
“Unaccepted Lead” means: (i) a lead that is not accepted by Advertiser; or (ii) a lead that Advertiser has not paid for on the terms set forth on the applicable IO; or (iii) a lead that, as per Paragraph 5.5 of this Agreement, is determined not to be a Valid Lead (“Invalid Lead“). Advertiser shall have no right in or to any such Unaccepted Lead (including telephone call-related data). Unaccepted Leads shall be Aragon’s “Confidential Information” (as that term is defined herein). Advertiser shall not directly or indirectly: (1) transfer, use, export, display, disclose or share an Unaccepted Lead or the data contained therein to or with any third-party; or (ii) use an Unaccepted Lead or the data contained therein on Advertiser’s own behalf in any manner not expressly authorized by Aragon. A violation of the foregoing by Advertiser shall be a material breach of this Agreement and shall, without limitation, obligate Advertiser to pay Aragon for the same and/or indemnify and defend Aragon for any/all claims related thereto.
Advertiser acknowledges that there is an inherent risk in any Campaign that consumers will engage in misleading, dishonest and/or fraudulent activity, resulting in leads that are not Valid Leads. Aragon shall not be liable for misleading, dishonest or fraudulent activity of end-user consumers. Advertiser shall pay Aragon the Fees due in full for all Services, even if fraud by end users is detected. Notwithstanding the foregoing, Advertiser shall not be obligated to pay Aragon for any Invalid Lead. Subject to the terms set forth herein, Advertiser shall not be liable for transactions that are the result of Affiliate fraud if timely disputed and properly verified via commercially reasonable and industry-standard documentation, as determined by Aragon in its commercially reasonable discretion.
Subject to relevant restrictions, upon Aragon’s delivery of a Valid Lead to Advertiser (and Advertiser’s payment to Aragon in accordance with the payment terms set forth herein and in the applicable IO), Aragon shall grant to Advertiser joint ownership (exclusive to Advertiser) or a license (non-exclusive to Advertiser) to use such lead and the data contained therein. If a Valid Lead is: (a) exclusive to Advertiser, then Aragon grants Advertiser a non-exclusive license to use such Valid Lead and the data contained therein, and retains the right to use such Valid Lead and the data contained therein for its own purposes but shall not grant a license in such Valid Lead to another Advertiser for the same vertical for a period of ninety (90) days; or (b) non-exclusive to Advertiser, then Aragon grants Advertiser a non-exclusive license to use such Valid Lead and the data contained therein.
Each Party acknowledges and agrees that, unless otherwise specified in an applicable IO, (a) any lead/acquisition acquired in connection with the Services may be used by Advertiser for Advertiser’s own marketing purposes. Advertiser shall not re-sell, re-market, transfer, assign or disclose any Valid Lead; and (b) for the avoidance of doubt, Aragon shall have the right to use non-exclusive Valid Leads without limitation. Aragon may sell any non-exclusive lead or acquisition multiple times, to Aragon’s other customers, or otherwise distributed or used by Aragon.

5. Reporting and Tracking

Advertiser shall provide Aragon with the following reports for the purposes of determining the number of Compensable Transactions (“Reports“).

Pay-per-call campaigns:

For pay-per-call campaigns, Advertiser shall either provide Aragon with access to real-time reporting statistics or daily Reports of gross Compensable Transactions for each tracking link or per designated telephone number.
For sales-based telephone campaigns and other campaigns that cannot be tracked via link or designated telephone number, Advertiser shall provide Aragon with daily Reports of gross Compensable Transactions. Advertiser shall pay Aragon for all Compensable Transactions that are created during the Term of the Agreement and during the twelve (12) month period following expiration or termination of the Agreement. For the avoidance of doubt, Advertiser shall pay Aragon for such Compensable Transactions even if they are created after the relevant Campaign or open enrollment period.
For pay-per-call campaigns, Advertiser shall provide the reports to Aragon on a daily basis during the entire Campaign plus a period of thirty (30) days after the expiration or termination of the Campaign.
For pay per call Campaigns, Aragon shall track telephone calls that connect with the designated call center agent, or “raw inbound telephone calls” via a platform such as Everflow or Ringba. Advertiser shall promptly take all steps necessary to facilitate and maintain call tracking via Aragon’s platform of choice during a Campaign.

Campaigns other than pay-per-call campaigns:

For Campaigns other than pay-per-call campaigns, Advertiser shall provide the Reports to Aragon on a daily basis for the Term of the Agreement and then on a weekly basis for a period of fourteen (14) months after expiration or termination of the Agreement.
Aragon shall be responsible for tracking Compensable Transactions and related statistics generated for each Campaign. Advertiser acknowledges that Aragon shall, for CPA and CPI Campaigns, have the right to place tracking code (typically a pixel or server postback URL) on Advertiser’s website, mobile app, within Advertiser’s Mobile Measurement Platform (“MMP”), or within Advertiser’s other tracking solution for tracking and reporting purposes. In addition to the foregoing, Advertiser agrees to allow Aragon to place an additional pixel(s) on Advertiser’s home page to allow Aragon to better track consumer traffic and generate returns for Advertiser. Notwithstanding the foregoing, unless Advertiser provides Aragon with access to real-time reporting statistics, Advertiser will either provide a daily report via email or make available a daily report that details information as tracked by Aragon’s tracking pixel located on Advertiser’s website. Reports will reflect daily gross Compensable Transaction numbers for each tracking link as reported by Advertiser.
For Campaigns other than pay per call Campaigns, Aragon shall have the right to track all transactions through a third-party tracking platform of its choice, including but not limited to, 24 Metrics. Advertiser shall promptly take all steps necessary to facilitate and maintain tracking via Aragon’s platform of choice during a Campaign, including but not limited to, allowing Aragon to place tracking code (such as a pixel) on Advertiser’s website for purposes of tracking consumer traffic. Advertiser shall not: i) alter or remove the pixel or other tracking method deployed by Aragon; or ii) alter the location of the pixel or other tracking method deployed by Aragon. If Advertiser alters, removes, disables or moves the pixel thereby disrupting or disabling Aragon’s tracking system, Advertiser will be obligated to pay for all estimated transactions generated during this period based upon the historical earnings over the previous thirty (30) days for the period in which such pixel was altered, disabled, displaced or removed. In addition, Advertiser agrees to place the Aragon pixel on a unique confirmation page that does not contain the pixel or tracking method of any third-party.
Except as set forth in an IO, for Campaigns other than pay per call Campaigns, Advertiser shall pay Aragon based upon each firing of the Aragon pixel (based upon Aragon tracking logs) or other tracking technology used by Aragon. If Advertiser permits another Party to place a pixel or other tracking technology on the same page that Aragon places its pixel or other tracking technology, Advertiser shall not split or otherwise reduce the compensation due to Aragon for any Compensable Transactions, regardless of any payment made to any third-party for the subject action in reliance on any other pixel and/or tracking method appearing on the same page.
Aragon expressly reserves the right to seed applicable data to monitor Advertiser’s compliance with the terms of this Agreement.

The Reports shall include commercially reasonable and verifiable data showing the Compensable Transactions as identified in the relevant IO, as amended by mutual agreement, if applicable. If Advertiser fails to make the Reports available to Aragon on a daily basis, then Aragon’s count of Compensable Transactions shall control and be considered conclusively valid.
Advertiser shall maintain copies of the Reports and the records on which the Reports are based during the Term of the Agreement and for a period of seven (7) years after Termination or Expiration of the Agreement.
Advertiser shall provide Aragon with complete copies of any records and data within Advertiser’s possession, custody or control relating to a Campaign upon Aragon’s request for the purpose of verifying the number of Compensable Transactions and/or performance of a Campaign within three (3) days of such request. Advertiser’s failure to provide such records or data shall constitute a material breach of the Agreement.
Advertiser shall notify Aragon in writing within five (5) days of the date that a transaction occurs that it does not believe that it is a valid Compensable Transaction. Advertiser’s notice must include commercially reasonable and verifiable documentation supporting its claim. The Parties will make a good faith effort to resolve the dispute within thirty (30) days following the end of the applicable billing cycle, using generally accepted industry standards. Aragon shall have the right to determine, in its sole discretion, whether a disputed transaction is a Compensable Transaction. If Aragon agrees with Advertiser that the transaction is not a Compensable Transaction, then no fee shall be due to Aragon for such transaction. If the parties are unable to arrive at a reconciliation, Aragon and Advertiser expressly agree that Aragon’s tracking count shall be considered conclusively valid.
In cases where Compensable Transactions cannot be adequately tracked due to, without limitation, technical difficulties that cause Advertiser’s website to crash, website performance to decrease or Aragon’s tracking pixel to stop accurately reporting actions (collectively, “Technical Issues”), Advertiser shall compensate Aragon for the days for which the data cannot be supplied at a default rate equal to the average daily total Compensable Transactions for the seven (7) days prior to the Technical Issues for clicks/impressions, or the average conversion rate applied to the number of clicks delivered for the seven (7) days prior to the Technical Issues for conversions. Aragon acknowledges that Advertiser may wish to separately track Compensable Transactions.

6. Representations and Warranties

Mutual Representations and Warranties

EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT: (A) IT HAS THE FULL CORPORATE RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT, TO GRANT THE LICENSES GRANTED HEREUNDER AND TO PERFORM THE ACTS REQUIRED OF IT HEREUNDER; (B) THE EXECUTION OF THE AGREEMENT BY IT AND THE PERFORMANCE OF ITS OBLIGATIONS AND DUTIES HEREUNDER, DOES NOT AND WILL NOT VIOLATE ANY AGREEMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS OTHERWISE BOUND; AND (C) WHEN EXECUTED AND DELIVERED, THE AGREEMENT WILL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATION OF EACH PARTY, ENFORCEABLE AGAINST EACH PARTY IN ACCORDANCE WITH ITS TERMS.

Advertiser Representations and Warranties

Advertiser represents and warrants, as applicable, that:

It will immediately notify Aragon in writing of any change to its legal and/or business name or entity type;
The individual executing the Agreement and any IOs has the authority to legally bind Advertiser;
It shall comply, and assist Aragon with complying with all applicable international, federal, state or local laws, rules, regulations, or trade organization and ordinances including, without limitation, the CAN-SPAM Act of 2003 (as amended), California Business & Professions Code § 17529, the Canadian Anti-Spam Legislation (as amended from time to time), the Federal Telemarketing Sales Rules (including, without limitation, the Telemarketing Sales Rule (16 C.F.R. Part 310), the Telephone Consumer Protection Act (47 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 Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.), the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Federal Trade Commission Act (as amended) and any/all Federal Trade Commission implementing regulations applicable to Advertiser’s products/services and Advertiser’s performance under this Agreement (collectively, “Laws“);
It will maintain a written policy for maintaining Do Not Call/suppression requests;
It will create and maintain entity specific Do Not Call lists and ensure Do Not Call lists (in addition to revocation requests and re-assigned numbers) are provided to Aragon at least weekly;
It will use and maintain records documenting a process to prevent calls to any telephone number on an entity specific Do Not Call list or the National DNC Registry (the latter process must involve using a version of the National Registry from the FTC);
It will scrub, in accordance with applicable Laws, but in any event, no less frequently than every thirty (30) days all leads and telephone numbers against the Federal Do Not Call Registry and all applicable state Do Not Call lists;
It will maintain or cause to be lawfully maintained digital recordings of all telephonic communications with consumers as required by applicable laws and ensure that the applicable call-tracking platform settings are enabled to permit Aragon to access digital recordings. Advertiser shall keep copies of call recordings for a period of no less than four (4) years. Advertiser shall provide Aragon access to any requested call recordings within twenty-four (24) hours of Aragon’s request. Aragon shall have the right to audit Advertiser’s compliance with the terms of this Agreement, including, but not necessarily limited to, accessing a random sampling of telephone calls, as needed for compliance and quality assurance purposes;
It will not violate the rights of any third-party including, without limitation, infringement or misappropriation of any copyright, patent, trademark, trade secret or other proprietary/intellectual property right;
It owns and/or has any and all rights, title, and interest in and to the Creative Materials, and to permit the use, reproduction and transmission of the Creative Materials by Aragon and its Affiliates as contemplated by the Agreement. The Creative Materials do not violate the rights of any third party including, without limitation, any copyright, patent, trademark, trade secret or other third-party proprietary rights and do not violate any applicable Laws; Its products or services shall not target consumers under the age of eighteen (18);
Its website and/or Creative Materials shall not be, nor contain, any material that can be considered, defamatory, libelous, pornographic, obscene, hate-filled, or otherwise objectionable, that promotes gambling, tobacco, alcohol, or any illegal activity or that contains viruses, Trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines;

7. Payment

Aragon will invoice Advertiser monthly or as otherwise specified in an applicable IO. Each invoice will set forth the amount of money due (“Fees“) based on: (a) the number of Compensable Transactions generated in connection with each applicable Campaign as set forth in the Reports multiplied by the Payout, plus any upward adjustment required by the Minimum Conversion Rate and any other terms set forth in an applicable IO; (b)any charges associated with each Campaign; and (c) less any refundable Pre-Payment repaid amounts or other credits. Aragon’s failure to provide an invoice to Advertiser shall not operate as a waiver of Aragon’s rights or relieve Advertiser of any liability or obligation to make payments. Payments must be made U.S. dollars, unless otherwise specified in an applicable IO. Except for taxes on Aragon’s income, Advertiser shall be responsible for any applicable sales, use or other taxes, duties, and tariffs.
Unless otherwise set forth in the applicable IO, Advertiser shall provide Aragon at least two (2) business days prior written notice for any/all adjustments to budget (e.g., media spend), rate and volume-cap. All such adjustments must be memorialized by a written agreement executed by an authorized representative of each Party.
Advertiser shall pay Aragon within thirty (30) days of the invoice date, unless otherwise agreed in an IO. Advertiser is solely liable for payment to Aragon, regardless of any third party’s payment obligation to Advertiser. Interest will accrue on any past due amounts at the rate equal to the greater of one and one half percent (1.5%) per month or the maximum amount permitted by law, compounded monthly. In addition, Advertiser shall be liable to Aragon for all attorneys’ fees and other costs of collection incurred in collecting any unpaid amounts from Advertiser. Notwithstanding any provisions of the Agreement to the contrary, Aragon shall have the right to suspend any or all Campaigns while payments remain outstanding and reserve the right to require pre-payment under terms it deems appropriate. Any agreed new or modified payment terms will supersede previous arrangements. Refunds, if any, will be issued at Aragon’s commercially reasonable discretion.
Payments may be made by wire transfer, check, or, subject to Aragon’s prior written approval, by credit card billing, in which case the Client shall submit a completed Credit Card Authorization Form to Aragon. Checks shall be made payable to Aragon Advertising LLC and mailed to 66 Mineola Avenue #1355 Roslyn Heights, NY 11577. Wire payments shall be made to Aragon’s U.S. banking account, at Citibank, N.A. BR. #940, 153 East 53rd St. 24th Floor, New York, NY 10022.
Advertiser’s sole remedy for any claims or disputes that it may have with respect to any invoice or transaction is to submit a claims or dispute in writing to Aragon within ten (10) days following the applicable invoice issuance date. Any/all disputed claims must be supported by commercially reasonable, industry standard and properly verified documentation, as determined by Aragon in its commercially reasonable discretion. Advertiser’s failure to timely dispute and/or substantiate its claims shall operate as an irrevocable waiver and such charge will be considered final and binding.
Except for Aragon’s income taxes, Advertiser shall be responsible for any applicable sales, use or other taxes, duties, or tariffs in connection with its receipt of the Services. Advertiser agrees that, notwithstanding the basis for termination, it shall remain liable to Aragon for all Compensable Transactions incurred pursuant to this Agreement, prior to termination thereof.

8. Term and Termination

This Agreement shall commence on the Effective Date and remain in effect until terminated in accordance with the termination provisions set forth in this Section 8 (the “Term”).
Either Party may terminate these Terms and Conditions immediately upon written notice to the other Party if there is no active Campaign or IO in effect.
If an active Campaign or IO is in effect, either Party may terminate these Terms and Conditions or an IO upon fourteen (14) days’ written notice to the other Party for any reason. Aragon shall have the right to pause or terminate a Campaign or IO for any reason, with or without notice to the Advertiser, on a temporary or permanent basis.
Aragon shall have the right to terminate this Agreement immediately on written notice to Advertiser if (a) Aragon does not receive payment for an invoice by the applicable due date; or (b) Advertiser is in breach of any material provision of these Terms and Conditions or an IO, and such breach is not cured within five (5) business days of Aragon’s notice to Advertiser of such breach.
Either Party may terminate these Terms and Conditions and any IOs in effect upon written notice to the other Party if such Party ceases business operations, becomes insolvent, or is subject to any bankruptcy or other similar legal process or proceeding.
Upon expiration or termination of these Terms and Conditions for any reason: (a) Advertiser shall be liable for payment of Fees for Services performed through the effective date of termination without deductions of any kind; (b) all IOs in effect will immediately terminate; (c) any and all licenses and rights granted to either Party in connection with the Agreement shall immediately cease and terminate; and (d) any and all “Confidential Information” or proprietary information of either Party that is in the other Party’s possession or control must, at the written request of the requesting Party, be immediately returned or destroyed. Termination of these Terms and Conditions and any IO will be in addition to and not in limitation of any other rights or remedies to which either Party is or may be entitled. If Aragon’s right to use any Creative Materials is terminated for any reason, Aragon shall have the right to retain copies of such Creative Materials for archival purposes and to satisfy Aragon’s obligations under applicable laws. Notwithstanding any termination of the Agreement, any provisions of the Agreement that may reasonably be expected to survive termination of the Agreement, and any accrued but unpaid payment obligations, shall survive and remain in effect in accordance with their terms.

9. Recordkeeping; Right to Audit

Advertiser shall maintain, during the term of this Agreement and for a period of seven (7) years following expiration or termination of this Agreement, or at least until the conclusion of any applicable statute of limitations under applicable law or regulation, whichever is longer, maintain true and correct records relating to, without limitation, compliance with the terms of the Agreement, the number of Compensable Transactions and any payments due Aragon derived therefrom. If records pertinent to Advertiser’s compliance with the Agreement and/or relevant information, documentation or data is requested by a third-party, including, without limitation, a government entity or regulatory authority, Advertiser shall, upon not less than five (5) days’ written notice, provide Aragon, the third-party, the government entity and/or the regulatory authority a true and correct copy of such records. Such prior written notice to Advertiser shall identify the third party, government entity or regulatory authority to which such records must be delivered and the information that must be reported. Aragon or its agent shall be entitled to audit, at its expense, during regular business hours and upon not less than five (5) days’ written notice, records of all information pertinent to Advertiser’s performance hereunder, including, without limitation, compliance with applicable Laws. Any such audit shall not be made more than twice per annum during the term of this Agreement, unless reasonably required. If, based on any such audit, Aragon determines that Aragon was underpaid by an amount equal to or greater than the lesser of $5,000 or five percent (5%) for the period under audit, or that there has been of any material term of this Agreement, then the reasonable out-of-pocket costs incurred by Aragon in connection with the review (including reasonable accountants’ and attorneys’ fees) shall be reimbursed by Advertiser within five (5) days after demand therefor.

10. Confidentiality

“Confidential Information” means any non-public information disclosed in connection with this Agreement, including, without limitation, the terms of this Agreement, Unaccepted Leads, suppression lists, Creative Materials, conversion rates, response rates, business plans, strategies, know-how, marketing plans, suppliers, sources of materials, finances, business relationships, PII, pricing, technology, employees, trade secrets and other non-public or proprietary information, whether written, oral, or recorded in any form, that is marked or should reasonably be understood as confidential. Confidential Information does not include information that (a) is or becomes part of the public domain through no fault of the receiving party, (b) was already in possession of the receiving party, or (c) was independently developed by the receiving party without violation of this Agreement.
The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations under these Terms and Conditions or an applicable IO. Confidential Information may only be disclosed to employees, agents, or contractors with a need to know and who are bound by written confidentiality obligations no less protective than those set forth herein. The receiving party shall not copy or reproduce Confidential Information without the disclosing party’s prior written consent, except for a single copy made for backup or archival purposes.
The receiving party may disclose Confidential Information if required to do so by law, if the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure. Breach of the confidentiality obligations set forth in this Section may cause irreparable damage to the disclosing party and therefore the disclosing party will have the right to seek equitable and injunctive relief without the need to post a bond or other security, and to recover the amount of damages (including, without limitation, reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use, in addition to any other rights it may have in law or equity.
Notwithstanding the foregoing, Aragon shall have the right to (1) disclose the terms of this Agreement to its Affiliates; and (2) disclose email suppression lists to a third-party vendor providing email list management services, provided that such vendor is bound by confidentiality obligations no less protective than those set forth herein.
This Agreement does not transfer ownership of Confidential Information or grant a license thereto. The disclosing party retains all rights, title, and interest in any to all of its own Confidential Information. Upon termination of this Agreement for any reason, upon request, the receiving party shall return copies of Confidential Information to the disclosing party or certify, in writing, the destruction thereof, provided, however, that the receiving party may retain copies of any Confidential Information necessary to comply with applicable laws.
This Section 10 shall survive any termination of the Agreement for a period of three (3) years thereafter, regardless of the basis for termination.

11. Indemnification

Advertiser will indemnify, defend and hold harmless Aragon, Aragon’s Affiliates and each of their respective directors, officers, managers, members, employees, agents, successors and assigns (each, an “Aragon Indemnitee“), from and against any and loss, penalties, fines, damages, claims, expenses, (including attorneys’ fees) or liabilities arising out of, or resulting from: (a) Advertiser’s alleged breach of any or its representations, warranties or material obligations under this Agreement; (b) Advertiser’s violation of applicable law, willful, fraudulent or grossly negligent acts or omissions; and (c) the content of Advertiser’s websites and/or Creative Materials.
If an Aragon Indemnitee seeks indemnification under this Agreement, the Aragon Indemnitee will give prompt notice to Advertiser of the claims, and Advertiser will assume the defense of such claim. Aragon shall provide at Advertiser’s expense such information, co-operation and assistance to Advertiser as may be reasonably necessary for Advertiser to defend or settle the claim or action. Aragon’s failure to give prompt notice will not waive its right to indemnification. An Aragon Indemnitee may participate, at its own expense, in any defense and settlement directly or through counsel of its choice. Advertiser may not, enter into any settlement agreement without Aragon’s written consent. If Advertiser breaches its obligations under this Section 11.2, the Aragon Indemnitee(s) may defend or settle the claim and Advertiser must promptly reimburse the Aragon Indemnitee(s) for all associated costs, expenses, settlement amounts and other damages.
In the event Aragon shall be required by a regulatory or judicial body to produce, deliver of furnish any materials or information with respect to Advertiser or its affiliates pursuant to any request, inquiry, examination, demand, order or subpoena or under applicable law or regulations, then Advertiser shall be responsible for and shall promptly pay, reimburse and indemnify Aragon for all out-of-pocket expenses incurred (including, without limitation, reasonable attorney’s fees) and for the time spent by Aragon’s personnel charged on a time and material basis.

12. Disclaimer and Limitation of Liability

THE NETWORK, SERVICES, CREATIVE MATERIALS, ACQUISITIONS, LEADS, COMPENSABLE TRANSACTIONS AND TRANSACTION TRACKING CODES PROVIDED BY ARAGON UNDER THE AGREEMENT ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, ARAGON MAKES NO WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE), REPRESENTATIONS, OR GUARANTEES, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ARAGON DOES NOT WARRANT OR GUARANTEE COMPENSABLE TRANSACTIONS, CONVERSION RATES AND/OR RESPONSE RATES; THE NETWORK, SERVICES, CREATIVE MATERIALS, ACQUISITIONS, LEADS AND/OR TRANSACTION TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS. ARAGON DOES NOT WARRANT OR GUARANTEE THE SECURITY METHODS OR PRIVACY PROTECTION PROCEDURES OF ANY THIRD-PARTY, OR THAT SUCH SECURITY METHODS OR PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR FREE. ARAGON HAS NO LIABILITY FOR ADVERTISER’S USE, OR INABILITY TO USE, THE NETWORK, SERVICES, CREATIVE MATERIALS, ACQUISITIONS, LEADS, COMPENSABLE TRANSACTIONS AND/OR TRANSACTION TRACKING CODES, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, THAT ADVERTISER’S USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE.
EXCEPT FOR INSTANCES INVOLVING WILLFUL MISCONDUCT, IN NO EVENT SHALL ARAGON BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF ARAGON HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN NO EVENT SHALL ARAGON’S LIABILITY UNDER ANY CAUSE OF ACTION EXCEED THE AMOUNTS PAID TO ARAGON BY ADVERTISER UNDER THE AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.

13. Non-Circumvention and Non-Solicitation

Advertiser acknowledges that Aragon has valuable, proprietary relationships with its third-party Affiliates. Advertiser shall not circumvent Aragon’s relationship with such Affiliates, or otherwise solicit, purchase, contract for or obtain services similar to the services performed by Aragon in connection with this Agreement from any third-party Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with Aragon, during the term of this Agreement and for one (1) year following termination or expiration of this Agreement. To the extent that Advertiser can reasonably demonstrate that any such third-party Affiliate already provided such services to Advertiser prior to the date of the first IO executed by Advertiser under this Agreement, then Advertiser’s continued relationship with such Affiliate shall not be a violation of this Section.
During the term of this Agreement and for one (1) year following termination or expiration of this Agreement, Advertiser shall not solicit to hire or employ any employee, contractor, publisher, affiliate, marketer, mailer, agent, or vendor of Aragon without Aragon’s prior written approval, which may be withheld in Aragon’s discretion.
Advertiser acknowledges that any breach or threatened breach of Section 13.1 or 13.2 would cause Aragon irreparable harm for which monetary damages alone would be an insufficient remedy. Accordingly, Aragon shall be entitled to seek injunctive relief, including temporary and preliminary relief, without the requirement to post a bond, to prevent any such breach or threatened breach. In addition, Advertiser agrees to pay Aragon, as liquidated damages and not as a penalty, an amount equal to one hundred percent (100%) of the greater of: (a) the revenue Aragon would have earned but for the breach, or (b) the revenue wrongfully earned by Advertiser as a result of the breach, based on the twelve (12) month period preceding the violation. The parties agree that such liquidated damages represent a reasonable estimate of the harm that would result from a breach Aragon shall also be entitled to pursue any other remedies available at law or in equity.

14. Miscellaneous

Entire Agreement. This Agreement represents the complete and entire expression of the agreement between the Parties and supersedes any other agreements, whether written or verbal. In the event of any conflict of terms between the terms of an IO and these Terms and Conditions, the terms of the IO shall control, unless expressly stated otherwise. The Agreement will be construed as if both Parties equally participated in its drafting and thus will not be construed against the drafter. The Agreement may be amended only by a written agreement executed by an authorized representative of each Party.
Assignment. Except for Aragon’s right to subcontract to its Affiliates, neither Party may assign or transfer any part of this Agreement without the written consent of the other party; provided, however, that either Party may assign this Agreement without the consent of the other Party to any affiliate of such Party or in connection with a sale of all or substantially all of its assets or a stock sale, merger or other corporate reorganization resulting in a change of control of such party. The rights and obligations of the Parties hereto will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns, but only if the assignee agrees in writing to be bound by the terms of this Agreement. Any other attempt to transfer or assign is void.
Independent Contractors. The Parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise, or joint venture between the Parties. Neither Party has the authority to bind the other or incur any obligation on its behalf.
Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder must be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the city of New York and County of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court. THE PARTIES HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM, ACTION OR PROCEEDING, DIRECTLY OR INDIRECTLY, ARISING OUT OF, OR RELATING TO, THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW.
Mediation Requirement. Prior to either Party filing any legal suit, action, or proceeding arising out of or related to this Agreement, the parties agree to attempt to resolve the matter via mediation. Any mediation that takes place in accordance with this section shall take place in New York, NY unless Aragon agrees otherwise in its sole discretion. The parties shall cooperate in selecting a mutually agreeable mediator in good faith. In the event the parties cannot agree upon a mediator, each Party shall select one name from a list of mediators maintained by any bona fide dispute resolution provider or other private mediator, and the two selected mediators shall then choose a third person who shall serve as mediator. The parties acknowledge and agree that any mediated settlement agreement may be converted to a judgment and enforced according to applicable New York, NY law and rules of civil procedure. The parties agree to share the mediator’s fees equally. In the event that either Party fails to cooperate in a reasonable manner in the scheduling, facilitation, or conduct of the mediation contemplated herein, then the cooperating Party will have the right to recover from the non-cooperating Party the cooperating party’s costs and reasonable attorneys’ fees incurred in connection with any subsequent legal suit, action, or other proceeding, including costs, fees, and expenses on appeal regardless of which Party succeeds on the merits and regardless of any other fee shifting provision in this Agreement.
Notices. Except as specifically provided herein, all notices required hereunder must be in writing and must be given by: (a) personal delivery, effective upon personal delivery; (b) national overnight courier service, effective one (1) business day following deposit with the national overnight courier service; (c) e-mail or facsimile transmission, effective upon confirmation of transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. The addresses for giving notice shall be the Parties’ respective addresses first set forth above, or any other address as may be specified by a Party in a written notice to the other Party.
Waiver. No waiver of any breach of any provision of the Agreement will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving Party.
Severability. If any provision contained in the Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
Force Majeure. Except for Advertiser’s contractual payment obligations, neither Party will be liable for delays in performing, or failure to perform the Agreement or any obligations hereunder if such delay or failure result from a Force Majeure Event. In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations. A “Force Majeure Event” means an occurrence beyond the control and without the fault or negligence of the Party affected and which the Party is unable to prevent or provide against by the exercise of reasonable diligence including acts of government, war, terrorism, cyber-attacks (or threats thereof), rebellion, flood, fire, explosions, earthquakes, or other unforeseeable circumstances, whether similar or dissimilar to any of the foregoing. However, the Party whose performance is so delayed must use good faith efforts to minimize the effects of such delay and resume performance as soon as practicable.
Binding Effect. This Agreement shall inure to the benefit of, and be binding on, the Parties and their successors and permitted assigns.
Headings. The inclusion of headings in this Agreement is for convenience of reference only and will not affect the construction or interpretation hereof.
Counterparts. The Agreement may be executed in any number of counterparts, each of which will be deemed to be an original, but all of which will be deemed to be a single instrument.
Modifications. Aragon reserves the right to modify, amend, or update these Terms and Conditions at any time, in its sole discretion. Any such changes will be effective upon posting the revised Terms and Conditions on Aragon’s website or providing notice to Advertiser, whichever occurs first. By continuing to use the services after such modifications, Advertiser agrees to be bound by the updated Terms and Conditions.
Electronic Signature. Advertiser acknowledges and agrees that its Electronic Signature has the same legal effect as a manual signature. An “Electronic Signature” refers to any electronic sound, symbol, or process attached to or associated with a record, executed with the intent to sign the record. By signing electronically or consenting to the terms, Advertiser agrees to be bound by the terms of this Agreement. Advertiser further acknowledges that its Electronic Signature constitutes a legally binding contract, in accordance with the E-Sign Act and the New York State Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309). Advertiser consents to the use of electronic signatures, contracts, orders, and records, and waives any rights under laws that require non-electronic signatures or records.
Survival. The provisions of this Agreement that should by their nature survive termination of this Agreement shall survive such termination including, but not limited to: 1 (Insertion Orders and Campaigns), 5 (Tracking and Reporting), 6 (Representations and Warranties), 7 (Payment), 8 (Term and Termination), 9 (Recordkeeping; Right to Audit), 10 (Confidentiality), 11 (Indemnification) 12(Disclaimer and Limitation of Liability), 13 (Non-Circumvention and Non-Solicitation and 14 (Miscellaneous).