Signup Terms

This Affiliate Network and Publisher Agreement (“Agreement”) is made and entered into as of __________ (“Effective Date”) by and between RATESPECIAL INTERACTIVE, LLC, a California limited liability company, (“RateSpecial”) and __________________________________________, a ________________________________________________ (“Affiliate Network and or Publisher”) (each a “Party” and collectively, the “Parties”).

1.   Purposes. The “Purposes” of this Agreement is to memorialize the terms and conditions for Affiliate Networks, & or publishers directly or by using Affiliates as its agents, to promote and market the RPS according to the terms of this Agreement, and for the parties to protect Confidential Information and key relationships as set forth herein.

2.   Definitions.
i)    “Confidential Information” means any information or material which is disclosed by the Discloser to the Recipient, either directly or indirectly, or acquired in the course of the business relationship, either in writing, orally, by inspection of tangible objects or electronically that is i) non-public business, technical or other information or material of Discloser, including but not limited to the Discloser’s financial statements, products, services, programs, partners, clients, campaigns, pricing, procedures, processes, know-how, any reports or other communications with the Discloser’s auditors, legal counsel or other advisors and consultants, as well as any information or material relating to marketing and sales seminar and training techniques, current and planned product and service offerings, finances, prices, costs, suppliers, business operations or plans, electronic content files of products and pricing, databases, customer information, ii) any information or material which is designated as “Confidential,” “Proprietary,” or some similar designation whether so designated in writing or orally, iii) any information or material which under the circumstances surrounding disclosure indicate such ought to be treated as confidential, iv) any information or material which by its nature a reasonable person would conclude such is likely to be considered or desired by Discloser to be confidential information, and/or v) third party information or material disclosed to the Discloser. Notwithstanding anything to the contrary herein, information regarding a customer or potential customer for the purchase of RPS that is provided to RateSpecial by Affiliate Network and or Publisher (and its agents such as the Affiliate Network and or Publisher Marketers) shall be the Confidential Information of RateSpecial and not the Confidential Information of Affiliate Network and or Publisher or any of its agents.
ii)    “Discloser” means in regard to specific information or material, the Party disclosing such information or material, directly or indirect to the other Party.
iii)    “Affiliate Network and or Publisher Portal” means the portion of the website at http://publisher.ratespecial.com that requires a password for access, or any successor location as provided in writing by RateSpecial, and is intended for the management of RateSpecial’s relationships with Affiliate Networks and or or Publishers who wish to market the RPS products. The Affiliate Network and Publisher Portal contains additional terms of use for marketing practices and restrictions which hare incorporated herein by this reference.
iv)    “Offer Terms” means the terms of compensation, and marketing and other operational restrictions, related to marketing and promotion of specific potential products and services of RateSpecial and its clients, currently found under the “Request Offer” section at the Affiliate Network and or Publisher Portal, or any successor location as provided in writing by RateSpecial.
v)    “Engagement” occurs when Affiliate Network and or Publisher has reviewed the Offer Terms, indicated that Affiliate Network and or Publisher would like to be engaged to market and promote under the specific promotional program described, agreed to the specific terms of the specific program, and RateSpecial has approved Affiliate Network and or Publishers involvement with such program. “Engagement” ends upon termination as set forth in Section 12. “Engaged” refers to being into an Engagement and does not include any time period after the end of an Engagement.
vi)    “RPS” means the products and services of RateSpecial and its clients that RateSpecial Engages Affiliate Network and or Publisher to promote and market during the Term of this Agreement via the Affiliate Network and or Publisher Portal via a “Request Offer” that has been accepted by RateSpecial and has not been terminated.
vii)    “Accepted Offer Terms” means the Offer Terms for a specific promotional program related to specific potential RPS that Affiliate Network and or Publisher has been Engaged for by RateSpecial.
viii)    The “Affiliate Network and or Publisher Terms” means the agreement and terms referred to as “Affiliates Terms & Conditions” found at the Affiliate Network and or Publisher Portal http://publisher.ratespecial.com, as amended and the Accepted Offer Terms, as amended.
ix)    The “Protected Relationships” of RateSpecial are the clients, suppliers and vendors of RateSpecial involved with the marketing or provisioning of the products and services of RateSpecial and its clients, including but not limited to advertisers, but excluding those that Affiliate Network and or Publisher has a preexisting relationship with where Affiliate Network and or Publisher uses them to provide promotion or marketing of products or services that are the same as or are similar to the RPS.
x)    “Recipient” means with regard to specific information or material, is the Party receiving such information or material, directly or indirect from the other Party.
xi)    “Affiliate Network and or Publisher Marketers” means the entities that are involved by Affiliate Network and or Publisher in the promotion or marketing of the RPS during the Term of this Agreement.
xii)    “RSoftware” means the software, databases, system architecture, network architecture, user interfaces, processes, methodologies, as well as any form of program integration, of or used by RateSpecial.
xiii)    “Term” means the period starting as of the Effective Date and ending upon the termination of this Agreement.
xiv)    An “Actionable Event” means an event defined in the applicable Accepted Offer Terms that defines what results in a fee being due Affiliate Network and or Publisher from RateSpecials Advertiser. An “Actionable Event” excludes any action that was procured in a manner in violation of this Agreement or via any illegal means, including but not limited to fraud, identity theft, or coercion or general manipulation of a consumer in the effort to generate an actionable event.
xv)    “Fraud” means any event in which a consumer is marketed to in a manner that conflicts with the Affiliate Network and or Publisher terms of use. All fraudulent transactions that are determined to be such will not qualify as an “Actionable Event”.
xvi) “Compliant Marketing” is marketing compliant with (a) the guidelines promulgated by the Federal Trade Commission including the “.com disclosure” regulations set forth at: http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf and (b) the terms and conditions of this Agreement.
xvii) Contact. The term “Contact” shall mean an individual who has signed up either electronically or orally for Advertised Services using the appropriate Affiliate ID, as that term is defined in the Insertion Order, and who has made the first scheduled payment for Advertised Services
xviv) Lead. The term “Lead” shall mean the use of true and accurate information to complete all fields applicable to a Program. A Lead is generated pursuant to the terms of this Agreement and does not include any invalid lead (including, but not limited to, an invalid, disconnected phone number; invalid email; no such person; never requested or uninterested in product or service offered under Program; immediate hang-up; not a U.S. citizen; interested in prize; under 18; etc.) or duplicate lead (including, but not limited to, a Lead similar to a prior Lead received within a ninety (90) day period). No deceptive advertising will be used to obtain Leads sent to Advertiser
xviii) Service Provider. The term “Service Provider” shall mean Lexington, a law firm that provides credit report repair services.
xvix) Transfer. The term “Transfer” shall mean a phone call from a customer of Publisher in which Publisher transfers the call to an Advertiser Call Center
xx) “Advertiser” is Lexington Law and or their CreditReady product

3.   Services of Affiliate Network and or Publisher. During the Term, Affiliate Network and or Publisher shall make best efforts to promote and market the RPS that it is Engaged for through email marketing and engaging Affiliate Network and or Publisher Marketers to promote and market the RPS to its customers and visitors to the websites of the Affiliate Network and or Publisher Marketers. Only materials approved by RateSpecial may be used by Affiliate Network and or Publisher and the Affiliate Network and or Publisher Marketers for public dissemination. Affiliate Network and or Publisher shall not promote, market or otherwise be involved with the products or services of RateSpecial unless it is currently Engaged for such specific products or services.

Affiliate Network and or Publisher shall follow any rules, regulations or other requirements and limitations provided to it in writing by RateSpecial with regard to the services it provides hereunder. Affiliate Network and or Publisher shall be liable and responsible for ensuring that the agents of Affiliate Network and or Publisher, including but not limited to the Affiliate Network and or Publisher Marketers, comply with the obligations of Affiliate Network and or Publisher as set forth herein to at least the same degree as Affiliate Network and or Publisher is required to herein.

The Offer Terms and the Acceptance Terms may be modified by RateSpecial at anytime by the provision of written notice of such changes, whether directly or through changes posted on the Affiliate Network and or Publisher Portal. Such modifications are fully binding Affiliate Network and or Publisher if not terminated by Affiliate Network and or Publisher as set forth in Section 12.

i.)   Ownership of Data:
Advertiser will retain the sole and exclusive right, title and interest in and to the Leads, Contacts, and all data delivered to Advertiser from the Program and in accordance with the terms and conditions of this Agreement. Publisher will not sell, transfer or assign any Lead or Contact to Advertiser that has previously been sent or transferred to a competitor of Advertiser or any person or entity in the credit repair services industry. Publisher will not sell, transfer or assign any Lead or Contact to a competitor of Advertiser or any person or entity in the credit repair services industry other than Advertiser. Further, Publisher may not use, sell, transfer or assign or attempt to monetize any Lead and/or Contact for Publisher’s own purposes, other than providing the Leads and/or Contacts to Advertiser, for a period of sixty (60) days following the date upon which Publisher submits a Lead and/or Contact to Advertiser.

4.   Compensation. For every Actionable Event related to RPS for which Affiliate Network and or Publisher has been Engaged, Affiliate Network and or Publisher shall earn, as a “Commission”, the associated fee as set forth in the Accepted Offer Terms. Determining whether an Actionable Event has occurred shall be in the sole but reasonable discretion of RateSpecial Advertiser based on RateSpecial’s and Advertisers tracking systems and determination of Fraud as described Section 2(xv).

Unless otherwise set forth in the Accepted Offer Terms, Affiliate Network and or Publisher shall be paid Commissions earned for a given calendar month within 30 days of the end of such calendar month. However, if all Commissions due to Affiliate Network and or Publisher are less than $100, such shall be credited to the next calendar month and not paid until all outstanding Commissions due exceed $100 in aggregate. In order to receive Commissions, Affiliate Network and or Publisher must provide RateSpecial with a fully completed W-9 or other similar such documentation typically requested.

RateSpecial will use all commercially reasonable efforts to notify Affiliate Network and or Publisher of fraudulent “Actionable Events” within 30 days of the “Actionable Event”.

Affiliate Network and or Publisher must dispute, in writing, any issue in the calculation of Commissions due within 7 days of receiving a Commission payment or Affiliate Network and or Publisher shall then be deemed to have waived any dispute. Notices of dispute must be provided by email to disputes@ratespecial.com, or by any successor method that RateSpecial indicates in writing as the applicable method.

5.   Restrictions & Advertising Practices.
For any Engagement, subject to any greater restrictions in the applicable Accepted Offer Terms, Affiliate Network and or Publisher may promote the applicable RPS by banner advertisements, button links and/or text links (collectively hereafter the "Links"), no search paid or natural is allowed direct to advertiser, contextual links for popup advertisements and email that is compliant with all applicable laws. Subject to the prior written and continuing approval of RateSpecial, promotional Links may contain the trade names, service marks, banners, buttons, and/or logos provided by RateSpecial on the Affiliate Network and or Publisher Portal for display on the websites used for Affiliate Network and or Publisher’s Engagement. Use of creative material that is not approved by RateSpecial will disqualify any resulting events from being “Actionable Events”. If the applicable Accepted Offer Terms says “WEB ONLY”, the foregoing materials are only allowed on the websites of Affiliate Network and or Publisher (and for avoidance of doubt cannot be used in email or in Links). If the applicable Accepted Offer Terms says “EMAIL ONLY”, Affiliate Network and or Publisher (and its agents) must limit the related promotional activities to emailing to lists, which for the avoidance of doubt are limited only to those created, managed, and treated in compliance with all applicable law. If the applicable Accepted Offer Terms says “CONTEXTUAL LINK ONLY”, then Affiliate Network and or Publisher may only promote RPS using Links, using them to direct potential customers of RPS directly to the website(s) designated in the Accepted Offer Terms.

In instances when a Publisher is advertising the RPS and collecting data or using Telemarketing to generate traffic or interest in the RPS the publisher must adhere to:
A.   Data Collection Practices Generally. Any Leads, Contacts, and/or data Publisher provides to Advertiser shall be obtained, collected, and compiled using methods that fully comply with all (federal and state) applicable laws, rules, and/or regulations, including, without limitation, the Telephone Consumer Protection Act, the Telemarketing Sales Rule, and the CAN SPAM Act, 15 U.S.C. § 7701 et seq. and all amendments thereto, all laws governing deceptive trade practices and/or online marketing and advertising, all other applicable federal, state, county, and local laws, ordinances, regulations and codes, and any additional guidance that Advertiser in good faith believes to be appropriate. Publisher will obtain pre-approval in writing from Advertiser prior to making any changes to any material or requirements provided by Advertiser to Publisher. Advertiser must approve in writing, in advance of its commercial use, all advertising and/or messaging that Publisher uses to (a) deliver any Lead and/or Contact to Advertiser, and/or (b) obtain, collect, and compile data that Publisher provides to Advertiser. Publisher will be solely liable for any and all damages, losses, expenses, costs (including reasonable attorneys’ fees) and other liabilities arising out of or related to Advertising Practices, advertising, creative, and/or messaging not pre-approved in writing by Advertiser.

B.   Telemarketing Compliance. Data Collection. Any data Publisher provides to Advertiser for telemarketing shall consist of records of persons who (i) have made an inquiry (as that term is used in the Telemarketing Sales Rule and applicable state law, sufficient to satisfy the requirements of an Established Business Relationship as defined in the Telemarketing Sales Rule and applicable state law) regarding Advertised Services, and (ii) have not subsequently requested to be added to Publisher’s internal do-not- call list pursuant to the National Do Not Call Registry. Publisher agrees that any and all data it provides to Advertiser and/or the Advertiser Call Center will not be shared or marketed with any other party, individual or entity that has any business, research and development, sales, services or other pursuits similar in nature, purpose or otherwise competitive with products or services offered by Advertiser and/or Service Provider. Once a Transfer occurs, Publisher will not in any way, directly or indirectly, individually or on behalf of any other person or entity or other third party, contact the relevant individual related to the Transfer, nor shall Publisher in any way utilize for Publisher’s benefit the data in connection with the relevant individual related to the Transfer.

C.   Transfers:

1.   Call Procedure. Publisher’s call center agents (i) receiving inbound calls from those customers who call into Publisher’s call centers, and (ii) making outbound calls, along with Publisher’s Interactive Voice Response system, (collectively “Publisher’s call center agents”), will determine each customer’s interest in a product or service marketed by Advertiser by presenting a script (“Script”) prepared and approved by Advertiser and delivered to Publisher with a corresponding insertion order. Publisher’s call center agents shall read the Script questions verbatim. Advertiser, in its sole discretion, may update or modify the Script or test different formulations of the Script and Publisher shall implement such new scripts within one (1) business day of confirmed receipt of the updated or modified Script.

2.   Marketing and Transfers. All marketing performed via the telephone shall: (a) follow all Do Not Call (“DNC”) rules, whether federal or state protocols and regulations, (b) employ a quality review process that includes call recording systems, for quality assurance and review, and inform consumers of recording procedures as required, (c) employ a quality review process, including random review, targeted audit, random audit, rectifying complaints, etc., (d) properly present and not overpromise the services related to the Script provided by Advertiser, (e) not “force” consumers into selecting options; for example, if a consumer states “he or she is not interested” twice, the call should end, and (f) clearly identify the phone representative as being from or with Publisher.

3.   Permission to Transfer. Publisher’s call center agents will, upon a customer’s expression of interest in the products or services identified in the Script, obtain from such customer (prior to any Transfer) the customer’s express and explicit consent and permission for the Publisher’s call center agent to transfer the customer to an Advertiser Call Center.

4.   Best Efforts. Publisher’s call center agents will devote their reasonable best efforts to transfer all such customers who (1) express an interest in the products or services identified in the Script, and (2) give consent and permission to be transferred, to an Advertiser Call Center, which will then attempt to market such products or services to each such customer. If permitted by an applicable Insertion Order, use of an approved IVR script shall be considered reasonable best efforts.

5.   Telecommunication Costs. Publisher shall be solely responsible for all telecommunications costs related to all calls prior to the Transfer of the customer to an Advertiser Call Center.

Affiliate Network and or Publisher represents, warrants, and shall ensure that all of its acts or omissions and those of the Affiliate Network and or Publisher Marketers and other agents will:

i)    be and are aware of and comply with all applicable law at all times, including but not limited to the CAN-SPAM Act of 2003 (15 U.S.C. §7701, et seq.), the regulations of the FTC, the Consumer Legal Remedies Act (Cal. Civil Code §1750, et seq.), and Cal. Business and Professions Code §17529.5.;
ii)   not operate from or be registered in Afghanistan, Albania, Armenia, Azerbaijan, Belarus, Brazil, Bulgaria, China, Costa Rica, Croatia, Cuba, Czech Republic, Estonia, Georgia, Hungary, India, Indonesia, Iran, Iraq, Israel, Japan, Jordan, Kaliningrad, Kazakhstan, Korea, Kuwait, Kyrgyzstan, Latvia, Lebanon, Lithuania, Malaysia, Moldova, North Korea, Oman, Pakistan, Qatar, Philippines, Romania, Russia, Saudi Arabia, Singapore, Slovakia, Slovenia, Sudan, Syria, Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan, Yemen, and Yugoslavia, or any other country later indicated by RateSpecial;
iii)    comply with the Accepted Offer Terms, including but not limited to those indicating restrictions on the locations which Affiliate Network and or Publisher (which includes its agents) may be associated with;
iv)    review and conduct all activities in compliance with all third party obligations, including but not limited to conducting all bulk emailing activities in compliance with all applicable service providers such as ISP and email service providers;
v)    not engage in “harvesting” or “phishing” for email addresses from any public or other sources such as, but not limited to, chat rooms and message boards, including community websites that prohibit such activity;
vi)    not use false or misleading subject lines or headers, nor transmit e-mail that makes use of or contains invalid or forged headers, invalid or non-existent domain names or other means of deceptive addressing;
vii)    not transmit e-mail that is relayed from any third party's mail servers without the permission of that third party, or which employs similar techniques to hide or obscure the source of the e-mail;
viii)    not mail to anyone who has specifically unsubscribed to any previous e-mail campaigns;
ix)    ensure any “opt out” procedure it provides or is required to provide properly functions;
x)    not send unsolicited text (SMS) messages to any cell phone;
xi)    not engage in infringement of any patent, copyright, trademark, trade secret, rights of publicity or privacy, or any other proprietary right of any third party;
xii)    not libel or slander any third party;
xiii)    not commit or otherwise permit any actual or alleged unfair business practices, false advertising, misrepresentation or fraud;
xiv)    not allow any false, deceptive, or misleading description, depiction or comparison of the RPS with any competitive products(s) or services(s);
xv)    not, directly or indirectly, link or otherwise associate the RPS with any material which constitutes child pornography or matter which involves depictions of nudity or sexuality by an age inappropriate-looking performer (i.e. someone who looks younger than 18 years of age), or by a performer who is portrayed or made to appear to be a person under the age of 18 years of age by virtue of the script, make-up, demeanor, costuming, setting, etc;
xvi)    not, directly or indirectly, link or otherwise associate the RPS with any material in which persons under the age of eighteen are depicted in actual, simulated or suggestive sexual situations;
xvii)    not, directly or indirectly, link or otherwise associate the RPS with any material displayed or transmitted in a way as to constitute harmful matter or indecent communications to minors;
xviii) not, directly or indirectly, link or otherwise associate the RPS with any material not fully in compliance with 18 U.S.C. Sec. 2257 et seq. or any similar statute, law, code or regulation of any country, province or jurisdiction worldwide;
xix)    not, directly or indirectly, link or otherwise associate the RPS with obscene material, including without limitation any material depicting bestiality, rape or torture;
xx)    not, directly or indirectly, link or otherwise associate the RPS with any material which can be construed as threatening, abusive, hateful, defamatory, libelous, slanderous, scandalous or injurious to the reputation of any person or entity;
xxi)    not, directly or indirectly, link or otherwise associate the RPS with any material constituting an infringement, misappropriation or violation of any person's intellectual property rights such as copyrights, trademark rights, rights of publicity, patent rights, personal property rights, privacy rights or other rights;
xxii)    not, directly or indirectly, link or otherwise associate the RPS with any program, file, data stream or other material which contains viruses, worms, "Trojan horses" or any other destructive feature, regardless whether damage is intended or unintended, which may cause damage to any computer equipment, loss or corruption of data or programs or inconvenience to any person; and/or
xxiii) not, directly or indirectly, link or otherwise associate the RPS with any adware onto a user’s computer unless such user specifically approves and/or acknowledges the installation of such material.
xxiv) not, position the RPS with any Craigslist, or any other similar site or job posting site, incentivized consumer path, or using stolen consumer information in an effort to drive an Actionable Event. This is considered fraudulent and will lead to all transaction for the current invoice period to be 100% invalid.
xxv) Publisher’s agrees to make marketing changes on non Compliant Marketing messages or advertisements with 48 hours of receiving the request from RPS.
xxvi) Publisher’s agrees to and will use no methods other than Compliant Marketing to market any of the RPS products.



6.   Protection of Protected Relationships. During the Term and for 1 additional year, Affiliate Network and or Publisher (and for the avoidance of doubt, the Affiliate Network and or Publisher Marketers) shall not, except as engaged by RateSpecial herein, directly or indirectly engage, seek to engage, or provide services to the Protected Relationships of RateSpecial. Affiliate Network and or Publisher acknowledge that doing so represents a tortious interference with the agreements and prospective economic relationships between RateSpecial and its Protected Relationships and may subject Affiliate Network and or Publisher to separate tort claims and punitive damages.

At no time during the Term of this Agreement or afterward shall Affiliate Network and or Publisher, directly or indirectly, divert any business opportunity or contract from RateSpecial. At no time during the Term of this Agreement or afterward shall Affiliate Network and or Publisher disparage RateSpecial.

Except as needed for the provision of services to RateSpecial pursuant to this Agreement and only to the degree permitted by RateSpecial, Affiliate Network and or Publisher (and its agents, including but not limited to the Affiliate Network and or Publisher Marketers) shall not, directly or indirectly, reverse engineer, disassemble, decompile, replicate, alter, create derivative works from, distribute or provide to others, extract information from, translate, or attempt to derive the source code of the RSoftware, except to the extent allowed under any applicable law. If applicable law permits such activities, any information so discovered must be promptly disclosed to RateSpecial and shall be deemed to be the Confidential Information of RateSpecial.

7.   Confidentiality. Except as set forth in this Section, Recipient will not disclose, distribute, copy or use any Confidential Information, without the prior written consent of the Discloser and then only to the extent specified in such consent. Confidential Information may be used only to the extent reasonably required for the performance of this Agreement hereof; provided however, that Recipient may only disclose the Confidential Information to those of its directors, officers, advisors, agents and employees (“Representatives”) who need to know such Confidential Information for the Purposes and who shall be bound by an agreement or other legally enforceable duty to preserve the confidentiality of the Confidential Information in a manner consistent with this Agreement. In addition, Recipient may authorize access to the Confidential Information to non-employees only after obtaining written consent from the Discloser to do so, and then only to those persons who have entered into appropriate confidentiality agreements, and Recipient will ensure compliance with the terms of such agreements. The Recipient will be responsible for any breach of this Agreement by it or its Representatives, whether or not such Representatives are associated with the Discloser at the time of the breach.
The obligations of confidentiality set forth hereunder do not extend to any item of Confidential Information which (i) is publicly known at the time of its disclosure, (ii) is lawfully received by a Recipient from a third party not under a confidential obligation to Discloser, (iii) is published or otherwise made known to the public by the Discloser of Confidential Information, (iv) was generated independently by the receiving Recipient without reliance on Confidential Information (with supporting documentation evidencing such independent generation), or (v) was received either prior to the effectiveness of this Agreement or was received for the first time only after the termination or expiration of this Agreement.
8.   Maintenance of Confidentiality. Recipient agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Recipient shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no event less than reasonable measures. Recipient shall reproduce Discloser’s proprietary rights notices on any copies, in the same manner in which such notices were set forth in or on the original. Recipient shall immediately notify Discloser upon discovery of any loss or unauthorized disclosure of any Confidential Information. In the event that the Recipient receives a request to disclose all or any part of the Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or governmental body, or pursuant to applicable regulatory or professional accounting standards, Recipient agrees to (i) immediately notify the Discloser of the existence, terms and circumstances surrounding such a request, so that the Discloser may seek an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the disclosed information, and (ii) only disclose that portion of the Confidential Information which counsel advises is legally required to be disclosed. At all times, the Discloser shall retain sole ownership of its Confidential Information.
9.   Return of Materials. At the request of the Discloser, Recipient will promptly return to the Discloser or destroy any written or electronic Confidential Information and all physical media on which Confidential Information was received from the other Recipient, including any copies thereof, with a letter confirming that the Confidential Information has in no way been reproduced or copied or that all copies have been returned and that none of the Confidential Information was furnished to anyone except in accordance with this Agreement. The Recipient and its Representatives shall not retain any copies, extracts or other reproductions, in whole or in part, of such written or electronic material.
10.   Limits on Liability; Disclaimers. EXCEPT FOR A MATTER INDEMNIFIED FOR UNDER SECTION 11, OR A BREACH OF SECTION 6, OR MALICIOUS ACTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS OR DAMAGE TO REPUTATION, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
RATESPECIAL MAKES NO REPRESENTATIONS OR EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE RPS (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). RATESPECIAL MAKES NO REPRESENTATION THE OPERATION OF ITS WEBSITE(S) WILL BE UNINTERRUPTED OR ERROR-FREE, AND RATESPECIAL WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS CAUSED BY FAILURE OF PERFORMANCE, ERROR OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION, TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR REACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. RATESPECIAL MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY INFORMATION DELIVERED HEREUNDER (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHETHER ARISING BY LAW, CUSTOM OR CONDUCT) OR AS TO THE ACCURACY OR COMPLETENESS OF INFORMATION REGARDING RPS AND RATESPECIAL SHALL NOT HAVE ANY LIABILITY RESULTING FROM AFFILIATE NETWORK AND OR PUBLISHER’S (OR ITS AGENTS) USE OR ANY THIRD PERSON'S USE OF THE INFORMATION.
11.    Indemnification. (a) Affiliate Network and or Publisher agrees to indemnify, hold harmless and defend RateSpecial, and its customers, affiliates, employees, agents, shareholders, officers and directors (collectively the “RateSpecial Indemnities”) and specifically its advertiser Lexington Law from and against any and all third party claims of loss, liability, suits, damages, fines, costs or expense, including reasonable attorneys’ fees, and all other expenses of litigation (including expert witness fees and court costs) asserted against RateSpecial Indemnities as a result of any claim of: (i) infringement by Affiliate Network and or Publisher (or the Affiliate Network and or Publisher Marketers) of any patent, copyright, trademark, trade secret, rights of publicity or privacy, or any other proprietary right of any third party; (ii) libel or slander by Affiliate Network and or Publisher (or the Affiliate Network and or Publisher Marketers); (iii) the violation or alleged violation of any applicable law, statute or governmental ordinance by Affiliate Network and or Publisher (or the Affiliate Network and or Publisher Marketers); (iv) any actual or alleged unfair business practices, false advertising, misrepresentation or fraud by Affiliate Network and or Publisher (or the Affiliate Network and or Publisher Marketers); (v) any false, deceptive, or misleading description, depiction or comparison of the RPS by Affiliate Network and or Publisher (or the Affiliate Network and or Publisher Marketers) with any competitive products(s) or services(s); (vi) any actual or alleged personal injury or actual or alleged property damage arising from or in relation to the services or products of Affiliate Network and or Publisher (or the Affiliate Network and or Publisher Marketers); (vii) any breach or alleged breach of a representation or warranty or any other provision of this Agreement by Affiliate Network and or Publisher (or the Affiliate Network and or Publisher Marketers); (viii) which relates to any issues of product or service liability from use of the Affiliate Network and or Publisher (or the Affiliate Network and or Publisher Marketers’) products or services; or (ix) breach by Affiliate Network and or Publisher (or the Affiliate Network and or Publisher Marketers) of any agreement with any third party.
RateSpecial agrees to indemnify, hold harmless and defend Affiliate Network and or Publisher, and its employees, agents, shareholders, officers and directors from and against any and all third party claims of loss, liability, suits, damages, fines, costs or expense, including reasonable attorneys’ fees, and all other expenses of litigation (including expert witness fees and court costs) asserted against the other as a result of any claim of: (i) infringement by the RPS of any patent, copyright, trademark, trade secret, rights of publicity or privacy, or any other proprietary right of any third party; (ii) libel or slander by RateSpecial ; (iii) the violation or alleged violation of any applicable law, statute or governmental ordinance by RateSpecial; (iv) any actual or alleged unfair business practices, false advertising, misrepresentation or fraud by RateSpecial ; (v) any breach or alleged breach of a representation or warranty or any other provision of this Agreement; or (vi) breach by RateSpecial of any agreement with any third party.
This Section 11 will not be construed to limit or exclude any other claims or remedies that a Party or its respective affiliates, successors and assigns (and its and their respective directors, employees and agents) may assert.
(b) Promptly after receipt by the other of notice of the commencement of any action or claim, the indemnifying Party shall notify the indemnified Party of the commencement thereof. The indemnifying Party shall have the right to assume and control the defense, including the selection of counsel; provided, however, no settlement may be made that results in restrictions or obligations on the part of an indemnified Party without the written consent of the indemnified Party.
12.   Termination and Survival. Either Party may terminate this Agreement for convenience at any time, upon 5 days prior written notice to the other Party. In addition, RateSpecial may terminate any Engagement at any time. In the event RateSpecial modifies Offer Terms and Accepted Offer Terms, Affiliate Network and or Publisher may terminate the modified Engagement, but must do so within 1 business day of such modification. All sections of this Agreement shall survive termination of the Agreement between the Parties and shall be binding upon their heirs, successors and assigns.
13.    Remedies. Each Party acknowledges that a violation of this Agreement would cause irreparable harm to the other Party for which no adequate remedy at law exists and each Party therefore agrees that, in addition to any other remedies available, a Party will be entitled to seek injunctive relief to enforce the terms of this Agreement. In the event a dispute arises under this Agreement, the prevailing Party shall be entitled to reasonable attorneys’ fees and costs in addition to all other remedies available to the Party under this Agreement, at law or otherwise.
14.   Miscellaneous. The terms of this Agreement may be modified or waived only by a separate writing signed by the Parties expressly so modifying or waiving such terms. No failure or delay by the any Party in exercising any right, power or privilege shall operate as a waiver, nor shall any single or partial exercise preclude any other or further exercise of any right, power or privilege hereunder. The unenforceability of any provision of this Agreement will not affect the validity or enforceability or any other provision. This Agreement shall bind and inure to the benefit of the Parties hereto and their successors and assigns. RateSpecial may assign this Agreement to any of its affiliates, or to an entity in connection with the sale, acquisition, or merger of its business or assets. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California without giving effect to any conflicts or choice of laws provisions that would cause the application of the domestic substantive laws of any other jurisdiction. The Parties agree that any disputes relating to this Agreement will be adjudicated exclusively by federal of state courts located in Los Angeles County, California. This Agreement and the Affiliate Network and or Publisher Terms contains the entire agreement between the Parties with respect to the subject matter hereof, and neither party shall have any rights to the trade secrets or proprietary information of the other Party except as set forth herein. In the event of a conflict between this Agreement and the terms incorporated from the Affiliate Network and or Publisher Terms, the terms most protective of favorable to RateSpecial shall supersede and take precedence. This Agreement may be executed by facsimile or electronic transmission and in counterparts, with each an original and both of which together shall constitute one and the same instrument.