Advertiser Terms and Conditions

These Aragon Advertising Terms and Conditions (the “Terms and Conditions”) effective as of the date of the signed insertion order, sets forth the terms and conditions which shall govern 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” or “Company”), and Advertiser.  This Agreement governs the relationship between Aragon and 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.”

  1. Insertion Orders and Campaigns
    1. Aragon agrees to perform the services (the “Services”) and undertake the marketing campaigns (each a “Campaign”) as set forth on an applicable Insertion Order or in a written message(s) (each, an “IO”), which is incorporated herein by reference (any IOs, together with this Agreement, are referred to as the “Agreement”).
    2. Each IO must set forth the applicable Compensable Transactions and any other relevant terms and conditions of the Campaigns. “Compensable Transaction” means a transaction identified in an IO that is generated by Aragon or its Affiliates, including, but not limited to, conversions, clicks, impressions, sales/actions, installs/downloads, telephone calls, telephone call transfers, applications, leads, and acquisitions.
    3. Payout” means the monetary amount that Advertiser shall pay Aragon for achieving each Compensable Transaction.  The Payout may be described in a dollar amount, as a percentage or in other manner agreed upon by the parties in an IO.
    4. As used in this Agreement or an IO, “CPA” means cost per acquisition; (b) “CPC” means cost per click; (c) “CPM” means cost per thousand impressions; and (d) “ppCall” means cost per call.
    5. Conversion” or “Converts On” means the terms upon which a transaction becomes a Compensable Transaction, which shall be set forth in an IO.
    6. “Minimum Conversion Rate” means the number of Compensable Transactions for which Advertiser shall pay Aragon during a CPA campaign.  If the parties agree to a Minimum Conversion rate, it shall be set forth in an IO.  The Minimum Conversion Rate may be calculated as a percentage of the total number of transactions or in other manner agreed upon by the parties in an IO.
    7. No adjustment to any IO will be effective unless mutually agreed upon in writing. Unless otherwise set forth in an applicable IO, Advertiser must provide Aragon at least two (2) business days prior written notice before any adjustment to budget (e.g., media spend), rate, and volume-cap will become effective.
    8. An IO may set forth a budgeted estimate of the Fees (as defined in Paragraph 7.1) for Compensable Transactions and other compensation to be paid to Aragon in connection with a Campaign. All such estimates or requests are non-binding, and Aragon shall have no obligation to deliver a minimum or maximum number of Compensable Transactions to Advertiser. In the event that Aragon produces a greater number of Compensable Transactions than budgeted in an IO, notwithstanding anything in this Agreement to the contrary, Advertiser shall pay Aragon for all Compensable Transactions up to three hundred percent (300%) of the budgeted amount(s).
    9. Pre-Payment” means a payment that Aragon may require from Advertiser prior to the start of any Campaign. Aragon shall have the right to pause or terminate a Campaign if Advertiser fails to make the Pre-Payment. Unless the parties agree otherwise on the applicable IO, Pre-Payments shall be applied to Fees due to Aragon in connection with a Campaign.  Any unused portion of a Pre-Payment shall be applied to subsequent campaigns.  Aragon shall have the right to require Advertiser to replenish any Pre-Payments. Upon termination or expiration of a Campaign, any unused portion of a Pre-Payment shall be applied to Fees due to Aragon under the applicable Campaign first, and then to any Fees due to Aragon under any other Campaigns that are unpaid.  Once all Fees due to Aragon are paid in full to Aragon, Aragon shall refund any unused portion of the Pre-Payment to Advertiser unless the relevant IO states that the Pre-Payment is non-refundable. 
  2. Affiliate Network
    1. 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.
    2. 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.

3. Creative Materials

  1. Within two (2) business days after execution of an IO, Advertiser shall provide Aragon with advertising materials for use in connection with the Campaign including, without limitation, banners, buttons, text links, clicks, co-registrations, pop-ups, pop-unders, emails, social media, graphic files, websites and similar online media (collectively, “Creative Materials”). Advertiser shall not modify the Creative Materials after they have been submitted to Aragon without Aragon’s prior express written consent. Unless otherwise specified in an IO, Advertiser shall maintain sole responsibility for Creative Materials provided to Aragon under this Agreement.
  2. Advertiser grants Aragon a non-exclusive, royalty-free, revocable, sub-licensable license to use the Creative Materials solely for the purpose of providing the Services.  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.
  3. Advertiser acknowledges that Aragon has no responsibility to review the Creative Materials for accuracy or compliance with Laws. Aragon shall have the right to reject or stop using any Creative Materials for any reason, with or without notice to Advertiser. 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. 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

4. Leads

  1.  “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.
  2. 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 5.8 of this Agreement, is determined not to be a Valid Lead.
  3. 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. Nothwithstanding the foregoing, Advertiser shall not be obligated to pay Aragon for leads that are not Valid Leads, provided that Advertiser complies with Paragraph 5.8.
  4. 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. Advertiser shall not re-sell, re-market, transfer, assign or disclose any Valid Lead except as explicitly set forth on an IO. For the avoidance of doubt, Aragon shall have the right to use non-exclusive Valid Leads without limitation.
  5. Advertiser shall not directly or indirectly transfer, use, export, display, disclose or share an Unaccepted Lead or the data contained therein to or with any third-party.  A violation of this section shall be a material breach of this Agreement.  Unaccepted Leads shall be Aragon’s Confidential Information.
  6. Each of Advertiser and Aragon acknowledge and agree that, except as may be set forth on the applicable Insertion Order: (a) any lead/acquisition acquired in connection with the Services may be used by Advertiser for Advertiser’s own marketing purposes; and (b) Aragon may sell any non-exclusive lead or acquisition multiple times, to Aragon’s other customers, or otherwise distributed or used by Aragon.

5. Tracking and Reporting

  1. Advertiser shall provide Aragon with the following reports for the purposes of determining the number of Compensable Transactions (“Reports”):
    •   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 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.
    • 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. Except as set forth in and IO, for Campaigns other than pay per call Campaigns, Advertiser shall pay Aragon based upon each firing of the Aragon pixel 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.
  7. 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.
  8. 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. 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.

6. Advertiser Representations and Warranties

Advertiser represents and warrants that: 

  1. It will immediately notify Aragon in writing of any change to its legal and/or business name or entity type;
  2. The individual executing the Agreement and any IOs has the authority to legally bind Advertiser;
  3. 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”);
  4. It shall maintain a written policy for maintaining Do Not Call/suppression requests;
  5. 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;
  6. 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);
  7. 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;
  8. 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 to 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;
  9. 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;
  10. Its products or services shall not target consumers under the age of eighteen (18);
  11. 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;
  12. Advertiser is not 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 or not related to a Campaign;
  13. 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;
  14. 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;
  15. 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 shall 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; 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;
  16. 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; and
  17. 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.

7. Payment

  1. Aragon will invoice Advertiser on a monthly basis or as otherwise agreed by the parties in an IO. Each invoice will set forth the amount of money due to Aragon (“Fees”) based upon: (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 IO; (b) 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.
  2. Advertiser shall pay Aragon within thirty (30) days from the issuance of an applicable invoice, or as otherwise agreed by the parties in an IO. Advertiser shall be solely liable for payment to Aragon. Advertiser’s payment obligations to Aragon are independent of, and unaffected by, a third party’s obligation to pay Advertiser for the Services. 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. Payments may be made by wire transfer, check, or automatic credit card billing.  Checks shall be made payable to Aragon Advertising, LLC and mailed to: 66 Mineola Avenue #1355 Roslyn Heights, NY 11577.
  3. 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.
  4. 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. 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.
  5. 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.

8. Term

This Agreement commences on the Effective Date and shall continue for one (1) year (“Initial Term”) unless sooner terminated.  Upon expiration of the Initial Term, the Term will automatically renew for successive one (1) year terms (each a “Renewal Term”) unless earlier terminated in accordance with Section 9. Together, the Initial Term plus any Renewal Term(s) shall be the “Term.”  

9. Termination

  1. Either party may terminate this Agreement immediately upon written notice to the other party if there is no active Campaign or IO in effect. 
  2. If an active Campaign or IO is in effect, either party may terminate this Agreement 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.
  3. 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 this Agreement or an IO, and such breach is not cured within five (5) business days of Aragon’s notice to Advertiser of such breach.
  4. Either party may terminate this Agreement 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.
  5. Upon expiration or termination of this Agreement 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; and (b) all IOs in effect will immediately terminate.  Termination of this Agreement 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.

10. Audit

During the term of this Agreement and for a period of seven (7) years following expiration or termination of this Agreement, Advertiser shall maintain accurate books and records of all information necessary to permit Aragon, upon advance written notice, and at its expense, to audit Advertiser for the sole purpose of determining Advertiser’s compliance with this Agreement. If the audit reveals an underpayment, Advertiser shall promptly pay to Aragon such underpayment along with past due interest from the time originally due until paid.  If the amount of the underpayment is more than five (5%) percent, Advertiser shall also be obligated to reimburse Aragon for its reasonable audit expenses.

11.  Confidentiality

Confidential Information” means any information relating to or disclosed in the course of this Agreement, including the terms of this Agreement, which is marked as confidential or proprietary, or should be reasonably understood to be as such. 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 this Agreement or an applicable IO. Upon request of the disclosing party, the receiving party will promptly return or destroy the disclosing party’s Confidential Information. 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 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 disclose the terms of this Agreement to its Affiliates. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. The disclosing party retains all right, 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.

12. Representations and Warranties

 Each party hereby warrants and represents to the other party that it has the full right, power, and authority to enter into and perform its obligations under this Agreement and that the performance of its obligations hereunder will not breach any other contract by which it is bound. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 12, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ARAGON HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR PARTICULAR PURPOSE.

13.  Indemnification

  1.  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; and (b) Advertiser’s willful, fraudulent or grossly negligent acts or omissions.
  2. 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 13.2, 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.
  3. 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.

14.  Limitation of Liability


15.  Non-Circumvention and Non-Solicitation 

  1. 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.  Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section shall not be adequate compensation to Aragon, and therefore Aragon shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Advertiser in the amount equal to one hundred percent (100%) of  Advertiser’s profits derived from said breach for the prior twelve (12) month period; and/or (c) any and all other remedies available to Aragon at law or in equity. 
  2. Advertiser shall not solicit to hire or employ any employee, contractor, publisher, affiliate, marketer, mailer, agent, or vendor of Aragon Advertising without Aragon Advertising’s prior written approval, which may be withheld in Aragon’s discretion.
  3. Advertiser acknowledges and agrees that in the event of any breach of this Section 15, Aragon shall have the right to seek an immediate injunction against any actual or threatened breach of this provision without the necessity of posting a bond. Aragon shall have the right to seek as monetary damages all amounts equal to the greater of what Aragon would otherwise have earned, or equal to the amounts that Advertiser has wrongfully earned, had this section not been violated.

16.  Miscellaneous

  1. Entire Agreement. This Agreement, together with all IOs, 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 a conflict between this Agreement and an IO, this Agreement will control unless the IO explicitly mentions the provision of this Agreement that the parties are intentionally overriding, and the IO is signed by a representative of each party duly authorized to legally bind the party. 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.
  2. 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.
  3. Independent ContractorsThe 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.
  4. 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. 
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. Force Majeure. With the exception of 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.
  10. Binding Effect. This Agreement shall inure to the benefit of, and be binding on, the parties and their successors and permitted assigns.
  11. Headings. The inclusion of headings in this Agreement is for convenience of reference only and will not affect the construction or interpretation hereof.
  12. 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.
  13. 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 (Advertiser Representations and Warranties), 7 (Payment), 9 (Termination), 10 (Audit), 11 (Confidentiality), 12 (Representation and Warranties), 13 (Indemnification); 14 (Limitation of Liability), 15 (Non-Circumvention and Non-Solicitation and 16 (Miscellaneous).