Coverage Professor - CPL - US [Main]

RESTRICTIONS

Absolutely No Incent, No Coreg, No Facebook Groups, No Craigslist ======= SMS Addendum RECITALS A. WHEREAS, Advertiser and Publisher executed the AA to govern the terms and conditions under which Publisher provides certain Internet-based lead generation, customer acquisition and/or other related services for Advertiser for the campaigns listed in the IO (“Campaigns”). All capitalized terms not otherwise defined herein shall have the same meaning as set forth in the AA; B. WHEREAS, the AA is vague on the use of SMS in connection with providing services to generate leads and/or acquire customers for the Campaigns; and C. WHEREAS, the parties wish to permit Publisher to independently use SMS as a means of generating leads and/or acquiring customers for the Campaigns, subject to the terms and conditions set forth herein. And Publisher has the requisite skills, knowledge and experience necessary to independently conduct such marketing activities. D. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Advertiser and Publisher, intending to be legally bound hereby, agree as follows: 1. Coordination. If there is any conflict between this Addendum and the AA or an IO executed before the Addendum Effective Date, this Addendum shall control. If there is a conflict between this Addendum and an IO executed after the Addendum Effective Date, the IO shall control. 2. SMS. Section 8 of the AA shall be modified to permit Publisher to use SMS (collectively, “Messaging”) for a Campaign, subject to the terms and conditions set forth herein. a. Publisher may conduct Messaging Campaign by contacting only consumers (“Consenting Users”) who have provided Publisher with “prior express written consent” (TCPA Consent”) as that term is defined in the Telephone Consumer Protection Act (47 USC § 227) and its implementing regulations, 47 CFR § 64.1200, as amended from time-to-time (“TCPA”) to be contacted via Messaging by or on behalf of the entity designated by Advertiser (“Named Advertiser Advertiser”). The language to be used by Publisher to obtain TCPA Consent from Consenting Users (“Consent Language”) must include the Named Advertiser Advertiser, as well as all language and other elements required under the TCPA, the most recent version of the Mobile Marketing Association (“MMA”) U.S. Consumer Best Practices for Messaging, the most recent version of the Cellular Telecommunications Industry Association (“CTIA”) SMS Interoperability Guidelines and CTIA Short Code Monitoring Handbook, the rules, terms, conditions and policies of all participating mobile telephone carriers, as well as any other rules applicable to Messaging (“Applicable Messaging Rules”). b. The Consent Language shall be provided to Advertiser before any Messaging in connection with a Campaign commences. No copy or text other than the Consent Language that was provided by Advertiser, in writing, may be used by Publisher for its Messaging activities and the TCPA Consent must not be combined with any other consent. Publisher will not edit, modify, deviate from or otherwise make any changes to the Consent Language in any manner without informing Advertiser in each instance. c. Publisher shall maintain or cause to be maintained records (“TCPA Records”) of the TCPA Consents obtained from each Consenting User, including the date and time stamp of when the TCPA Consent was obtained, the IP address/device ID of affiliate. 2 the Consenting User, the Consent Language associated with each such TCPA Consent and such other information, and/or documentation, that is reasonably necessary to prove in a regulatory or judicial proceeding, or in discussions that could reasonably be expected to predate such a proceeding, that the Publisher secured legally sufficient TCPA Consent from the Consenting User to be contacted via Messaging and by Publisher on behalf of the named Advertiser Advertiser. Publisher shall maintain the TCPA Records at its expense for at least seven (7) years and shall provide such TCPA Records to Advertiser within five (5) business days of its written request therefor. d. Publisher shall vet Messaging service providers and only use those entities/persons (“Approved Providers”) who, in its reasonable commercial judgment, have the technical capabilities and appropriate training and management that enables such Approved Providers to send SMS (“Messages”) in compliance with all Applicable Laws, Rules and Regulations and Applicable Messaging Rules including: (a) sending Messages in accordance with the Telemarketing Sales Rule time of day restriction based on where the recipient resides; (b) maintaining an operable opt-out system which suppresses users who opt-out from receiving further Messages; and (c) maintaining a system which records the date/time stamp and Message content for each Message sent to recipients. Publisher shall be solely responsible for the acts and omissions of its Approved Providers. e. Publisher shall ensure that all Messages sent in connection with a Messaging Campaign comply with all Applicable Laws, Rules and Regulations, Applicable Messaging Rules and the other terms, conditions and restrictions contained in the Master Marketing Agreement. The content of all Messages to be sent for a Campaign (“Message Content”) shall be provided to Advertiser for its prior written approval before such Message Content is used for a Campaign. No copy, images, links, buttons or text other than the Message Content that was pre-approved by Advertiser, in writing (including any links provided by Advertiser), may be used by Publisher in connection with its Messaging activities. Publisher will not make any changes to the Message Content without Advertiser’s prior written approval in each instance. f. Attached as Exhibit A are Advertiser’s business rules (“Business Rules”) for contacting Consenting Users. Publisher shall, and shall ensure that each Approved Provider shall, comply with the Business Rules. Advertiser reserves the rights to update the Business Rules from time-to-time, and such updates will become effective no more than ten (10) business days after they are provided to Publisher. If Publisher does not agree to the revised Business Rules, Publisher’s sole remedy is to cease promoting a Campaign via Messaging. 3. Compliance Monitoring and Consequences of Non-Compliance. a. Advertiser will actively monitor Publisher’s activity using a combination of its own seeding and proprietary software and/or third-party monitoring services to confirm that Publisher’s Messaging activities comply with this Addendum. Leads generated from Messaging activities that do not comply with this Addendum shall be deemed Fraudulent Leads for purposes of the Master Marketing Agreement. If Publisher is unable to reasonably prove that Publisher is not committing fraud and/or attempting to supply Fraudulent Leads from its Messaging activities, Publisher will forfeit the Fees for the subject Fraudulent Leads and Publisher’s account will be terminated. b. If Publisher uses any unapproved Consent Language or Message Content, or, in the commercially reasonable discretion of Advertiser, otherwise violates this Addendum, any Business Rules, Applicable Laws, Rules and Regulations or Applicable Messaging Rules, Advertiser may: (i) disable any links contained in the Messages; (ii) immediately terminate the Agreement upon two (2) business days prior written notice; (iii) withhold all payments otherwise due and owing to Publisher attributable to same; and/or (iv) hold Publisher liable for any and all damages and/or claims attributable to same, without regard to any of the limitations of liability contained in the Agreement. c. If Publisher is permitted to use Network Members in connection with its Messaging activities, Publisher shall be responsible for the actions of its Network Members and, as such, the provisions set forth in this Addendum applicable to Publisher, including Sections 3(a) and 3(b) hereof, shall apply to any and all such Network Members. Publisher shall maintain and provide to Advertiser, upon request: (i) any and all names under which its Network Members and Approved Providers do business; (ii) the state of incorporation/formation of each of its Network Members and Approved Providers; (iii) the registered agent of each of its Network Members and Approved Providers; (iv) the first and the last name, physical address, country, telephone number, and email address for at least one natural person who owns, manages or controls each Network Member and/or Approved Provider, as the case may be; and (v) the complete bank account information associated with the payments that are to be made to the Network members and Approved Providers. 3 4. Indemnification. Publisher agrees to indemnify, defend and hold harmless Advertiser and its employees, agents, officers and directors (collectively, the “Indemnified Parties”), from and against any and all claims, causes of action, judgments, demands, damages, losses and/or liabilities, including costs and expenses (including reasonable attorney’s fees and costs of suit), arising out of or relating to: (i) any breach of any covenant, representation or warranty contained in this Addendum by Publisher, an Approved Provider and/or a Network Member; (ii) any Message Content and/or any Messaging activity undertaken by Publisher, an Approved Provider and/or a Network Member; and/or (iii) the Consent Language and/or TCPA Consent. If any such action shall be brought against or involve Advertiser, Advertiser shall notify the Publisher in writing and Publisher shall assume and control the defense and settlement of each such action, including the employment of counsel and the payment of all associated expenses. Advertiser shall have the right to employ separate counsel in any such action and participate in the defense, at its own expense; provided, however, that if the named parties to such action or proceeding include both Publisher and an Indemnified Party and that Indemnified Party has been advised in writing by counsel that there may be one or more legal defenses available to such Indemnified Party that are different from or additional to those available to Publisher, the Indemnified Party will be entitled to employ separate counsel at Publisher’s sole cost and expense. Publisher may not agree to any stipulation, admission, or acknowledgement of any fault, guilt, wrongdoing, or liability on Advertiser’s part without Advertiser’s prior written consent and may not settle any claim on Advertiser’s behalf, or publicize any settlement, without Advertiser’s prior written consent. 5. Agreement in Counterparts. This Addendum may be signed in counterparts, and facsimile signatures shall have the same force and effect as an original signature. 6. Incorporation of Balance of Terms. This Addendum shall be deemed incorporated into and made a part of the AA. The balance of the Agreement, to the extent not inconsistent with or amended by this Addendum, shall be applicable to and govern the Messaging activities of Publisher. 7. Execution, Electronic Signatures. Publisher acknowledges that its electronic submissions constitute its intent to be bound by this Agreement and all terms contained herein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, Publisher HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY Advertiser. Further, Publisher hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. ======= Business Rules for SMS Campaigns 1. TCPA Consent. a. TCPA must contain all of the 47 CFR § 1200(f)(8) elements, e.g., use of autodialer and prerecorded messages, consent not required for purchase, etc. and meet E-Sign Act requirements. i. No pre-checked boxes b. TCPA Consent must not be combined with other consents such as consents to Terms and Privacy Policy. c. Message sender must be listed in TCPA Consent. d. Include a line of text separated from the TCPA consent language that is the same or substantially similar to the following: i. For SMS/Text Message Campaigns: From: Sender. Msg&Data rates may apply. Text STOP to stop; Text HELP for help. Max. XX messages/month. e. Proof of TCPA consent must be sufficient to prove consent in judicial and/or regulatory proceeding. i. Proof maintained for seven (7) years. ii. Produced within five (5) business days of request. 2. Message Content. a. Identify the message sender: “Sender: XYZ Pub”. b. Have clear opt-out instructions “Text STOP to opt-out”. i. System should recognize other opt-out terms such as CANCEL, NO MORE, expletives, etc. c. Offer must comply with general FTC Act rules on advertising: “not unfair or deceptive”. d. Use LeadPie supplied link. 3. Delivery & Frequency. a. Send messages only during permissible hours as per the Amended Telemarketing Sales Rule: not before 8:00 AM or after 9:00 pm based on the user’s location using the user’s self-reported zip code, state of residence or mobile phone area code. b. Do not send messages to users who have opted-out unless they re-opted in. c. No more than one message a day. d. Send a maximum of 3 messages to a user who does not perform a call to action by clicking on the link within the message. Once they do not respond to the third message, add the user to the opt-out list. e. Space out follow up messages – no more than three (3) messages over a 7-day period. 4. Opt-Out System. a. All publishers must maintain an opt-out system