WHEREAS, the Company offers a marketing platform (the “Platform”) that matches advertisers with suitable businesses and other organizations (collectively, “affiliates”) engaged in the business of marketing, selling, and distributing various products via digital channels (the “Business”).
WHEREAS, the Company permits eligible affiliates to utilize the Platform, including, among other things, to run marketing campaigns through the Platform and receive payment therefor, in each case subject to each affiliate’s consent to and continued acceptance of the Company’s Terms of Use available at https://marketcall.com/terms, and other terms, policies and agreements available on the Company’s website or otherwise made available to the affiliates by the Company from time to time (collectively, the “Terms of Use”).
WHEREAS, the Affiliate is an affiliate of the Company that has consented to the Terms of Use and owns, controls, supplies, finances or manages certain online marketing campaigns on behalf of itself, its clients or other third parties through the Platform.
WHEREAS, among the various services associated with the Platform, the Company provides its affiliates with the ability to make purchases of online marketing media (the “Media”) and advertising, and to manage and account for certain debit and/or credit facilities (the “Media Cards”) used to purchase the Media and advertising (collectively, the “Services”).
WHEREAS, the Affiliate wishes to retain the Company to provide the Services to the Affiliate pursuant to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of the promises set forth above and the mutual promises, agreements and conditions stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties hereby agree to the following:
1. Incorporation of Recitals. The foregoing Recitals are incorporated by this reference as though fully set forth herein.
2. Definitions. The terms that have been defined throughout this Agreement shall bear the meanings ascribed to them, or otherwise, shall have the meanings identified below:
2.1. “Account” means the record of money paid and money received that is maintained in the Affiliate’s name on the Platform, which is used for the execution of marketing campaigns through the Platform and receipt of payments therefor.
2.2. “Account Balance” means the entry equal to the sum of funds (in U.S. Dollars) available for the Affiliate’s use through the Platform.
2.3. “ACH” means automated clearing house.
2.4. “Affiliate” shall mean the company identified in the Preamble above, and all of its agents, assigns, affiliates, predecessors, successors, subsidiaries, parents, employees, independent contractors, or any other individual, business, and/or other organization or entity that receives any benefit from the Services pursuant to this Agreement.
2.5. “Agreement” shall mean this Media Transaction Services Agreement, and all exhibits hereto, and shall include any subsequent amendments or modifications to this Agreement.
2.6. “Applicable Laws” shall mean federal, state or local laws, rules, regulations, policies and/or procedures of any department or agency having jurisdiction over the activities, conduct, actions, or representations of the Company or the Affiliate.
2.7. “Authorized User” means any person designated by the Affiliate as authorized to use the Services, make purchases of the Media or advertising, and/or use the Media Card(s) on the Affiliate’s behalf.
2.8. “Confidential Information” shall include, without limitation, data, information, accounts, records, agents, vendors, employees, contractors, banking relationships, cost and expense data, marketing and customer data, sales manuals, protocols, management policies and procedures, quality assurance policies and procedures, the Company’s policies and manuals, documentation of processes, software, applications, designs, devices, compilations of information, symbols, service marks, logos, customer and vendor lists, business information, marketing programs, plans, and strategies, research and development plans, contracts and licenses, licensing techniques and practices, advertising and promotional materials, financial information, models and strategies, computer software and other computer-related materials, copyrightable material, security controls, including computer system passwords, and other confidential information owned by or used in the business of the Company, or its affiliates. Confidential Information also includes any information which is not generally known to the public, or within the market or trade in which the Company competes, and the physical embodiments of such information in any tangible form, whether written or machine-readable in nature, or any information which is marked or designated as “Confidential.”
2.9. “Designated Account” shall mean the Company’s bank account designated by the Company into which the Affiliate agrees to deposit those funds that the Affiliate intends to utilize for its Business through the Platform.
2.10. “Fees” means the Subscription Fee, any and all other fees and costs payable to the Company for the Services, and any third-party fees that may be incurred by the Company in provision of the Services. The Fees are listed on the Company’s Schedule of Fees.
2.11. “Media” shall mean advertising and marketing content on social media platforms.
2.12. “Media Spend” means the amounts expended on the purchases of the Media or advertising by the Affiliate.
2.13. “Monthly Fee Average” shall be equal to the total amounts of the Subscription Fees and other Fees earned by the Company for provision of the Services to the Affiliate, divided by the total number of months that the Company has provided the Services to the Affiliate.
2.14. “Purchase Limit” shall be established by the Company and will generally be based upon, the total amount of the positive Account Balance in the Account on any given day.
2.15. “Reserve” shall mean the minimum amount of available funds that the Company, in its sole discretion, requires the Affiliate to maintain in the Designated Account(s), which will not exceed ten percent (10%) of the average Media Spend using the Media Cards in any given month.
2.16. “Schedule of Fees” refers to the schedule of the Company’s fees available at https://marketcall.com/pricing_table, as it may be changed by the Company from time to time.
2.17. “Subscription Fee” means the monthly fee payable by the Affiliate to the Company, as set forth in the Company’s Schedule of Fees.
2.18. “Transaction Report” means a digital spreadsheet that contains an accounting of the Media Spend, segregated by the Media Card utilized for each purchase.
3. Services.
3.1. Scope of the Services. The Affiliate hereby engages the Company to provide the Services on its behalf, and the Company agrees to provide the Services to the Affiliate subject to the terms and conditions of this Agreement. As part of the Services, the Company agrees to use commercially reasonable efforts to provide the Affiliate with an option to utilize the Media Cards to conduct its Business through the Platform. The Company shall perform the actions necessary to complete the Services in a timely and professional manner consistent with industry standards, and at a location, place, and time which the Company deems appropriate.
3.2. Media Cards. Upon the Affiliate’s request, the Company will use commercially reasonable efforts to cause its third-party service providers to issue one or more Media Card(s) in accordance with the credit limits established by the Company and subject to the Company’s and its third-party service providers’ approval. The Media Cards shall be in the name of the Company. The Media Cards may be in either physical form, or virtual or digital form, as determined by the Company in its sole discretion. The Media Cards shall be used solely for the purposes of purchasing the Media or advertising in accordance with the instructions and subject to the limits established by the Company. The Affiliate may elect to purchase the Media or advertising utilizing the Media Cards through the Platform or through another third-party advertising platform. The Affiliate shall be at all times responsible for all amounts charged on the Media Cards by the Affiliate or on its behalf.
3.3. Account. The Services are at all times conditioned upon the availability of a positive Account Balance in the Account. In accordance with the Terms of Use, the Affiliate may establish a positive Account Balance in the Account through one of the means described in Section 3.4 below. The Affiliate understands and acknowledges that the Account is not a demand deposit (checking) account, savings account, or other asset or bank account. The Affiliate will not receive any interest on the funds maintained in the Account.
3.4. Payment for the Services and Media Spend. The payments for the Services, the Fees, and the Media Spend of the Affiliate, including any balances owed on the Media Card(s) used by or on behalf of the Affiliate for the Affiliate’s Media Spend, whether conducted through the Platform or third-party providers, will be done through the Account. To the extent the Affiliate has a positive Account Balance in the Account, it may utilize the available Account Balance for payment of the Services, the Fees, and its Media Spend. The Affiliate may have a positive Account Balance in the Account by virtue of payments received by the Company from advertisers for the Affiliate’s prior marketing campaigns conducted through the Platform, which were credited by the Company to the Account and have not yet been spent by the Affiliate. To the extent the Affiliate does not have a positive Account Balance in the Account, the Company will elect, in its sole discretion, upon written notice to the Affiliate, to utilize one of the following payment mechanisms:
1) Prepayment via Designated Account. The Company may elect to require the Affiliate to prepay for the Services, the Fees, and any related Media Spend. In such case, the Company will establish and maintain one or more Designated Account(s) with a financial institution of its choosing. The Affiliate agrees to deposit readily available funds denominated in U.S. dollars into such Designated Account(s) as instructed by the Company. The Company shall have the right, in its sole discretion, to change the Designated Account(s), and to transfer any funds deposited by the Affiliate into any newly Designated Account(s) established by the Company. The Company will credit the Account in the amount of the corresponding deposits made by the Affiliate to the Designated Account(s). Subject to the limits established by the Company, the Affiliate’s Purchase Limit will generally be based on the total amount of readily available funds deposited by the Affiliate into the Designated Account(s) that have not yet been spent by the Affiliate less any Fees and other charges.
2) Invoicing. The Company may elect, in its sole discretion, to extend credit to the Affiliate and invoice the Affiliate for the Services, the Fees, and any related Media Spend on a monthly basis. In such case, the Company will establish a Purchase Limit for the Affiliate and allow the Affiliate to utilize the Media Cards for Media Spend up to the Purchase Limit. The Company will then invoice the Affiliate monthly for the Fees and all amounts owed on the Media Card(s) used by or on behalf of the Affiliate to purchase the Media or advertising. All invoiced amounts shall be due no later than thirty (30) days after the date of invoice. The Affiliate agrees to provide the Company with complete and accurate billing and contact information. A service charge of 1.0% per month or the highest lawful interest rate permitted by law, whichever is lower, shall be applied to all amounts which are not paid when due under this Agreement, accruing from the due date. The Affiliate shall make all payments in U.S. dollars by electronic transfer, unless otherwise agreed to in writing by the parties, and hereby authorizes the Company, through the use of ACH entries, to debit the account designated by the Affiliate for all amounts owed under this Agreement and, if necessary, to reverse all or part of any such debit. Unless revoked in accordance with the Applicable Laws, this authorization shall be effective throughout the term of this Agreement.
3.5. Transaction Accounting. The Company will provide the Affiliate with access to a Transaction Report that contains an accounting of the Media Spend made each day, segregated by the Media Card utilized for each purchase. The Affiliate will be provided with a unique user name and password to access the Transaction Report. The Affiliate shall safeguard its user name and password and not share it with unauthorized individuals.
3.6. Reserve. The Company may, in its sole discretion, require the Affiliate to establish a Reserve, which shall be excluded for purposes of determining the Purchase Limit.
3.7. Purchase Limit and Other Restrictions. The Affiliate’s Media Spend shall not on any given day exceed its Purchase Limit. If the Media Spend on any given day exceeds its Purchase Limit, the Company shall have the absolute right and discretion to undertake any or all of the following actions: (i) suspend the Services and/or the Affiliate’s use of the Platform; (ii) revoke and/or freeze the Affiliate’s ability to utilize the Media Cards to purchase the Media or advertising; or (iii) reverse or challenge any of the transactions which caused the Media Spend to exceed the Purchase Limit. The Company and/or its service providers may decrease or increase the Affiliate’s Purchase Limit at any time, in its sole discretion, based, among other things, on the funds available in the Designated Account, transaction history of the Media Card purchases, and related risk considerations. The aggregate amount available for charges on the Media Cards at any given time will be determined by the Affiliate’s spending limit, available funds in the Designated Account (if applicable), and any holds and/or outstanding unpaid invoices. The Company and/or its service provider(s) may establish limits on the types of merchants with which the Media Cards may be used, as well as restrict the maximum amount of any particular charge and the number of charges allowed for the Media Cards. The Company is not responsible for losses resulting from declined or reversed charges, or if a third party refuses to honor a Media Card.
3.8. Authorized Users. The Affiliate may authorize one or more Authorized Users to access the Platform, make Media Spend transactions, and use the Media Cards or the Services on its behalf. To be eligible to use the Services, each Authorized User must be at least 18 years old and a resident of the United States. The Affiliate agrees to be solely responsible for any actions undertaken by each of its Authorized Users with respect to the Services, whether or not authorized by the Affiliate.
4. Compensation.
4.1. Fees. As consideration for its use of the Services, the Affiliate agrees to pay the Company a monthly Subscription Fee, which shall be due and payable by the Affiliate on the first day of every full or partial calendar month during the term of this Agreement. The Affiliate also agrees to pay the Company any and all other Fees that may be incurred by the Company in provision of the Services as set forth in the Schedule of Fees. The Schedule of Fees may be changed or amended by the Company from time to time in its sole discretion effective as of the date of posting on the Company’s website upon reasonable prior notice to the Affiliate. The Affiliate hereby consents to the Company’s withdrawal of the Fees from the Account or the Designated Account(s). With the exception of third-party fees, the Fees shall be deemed earned by the Company under this Agreement and included in the Company’s income.
4.2. Reimbursement of Expenses. The Affiliate agrees to reimburse the Company for all reasonable and customary business-related expenses not set forth on the Schedule of Fees, provided the Company obtains the Affiliate’s prior written consent. At the Affiliate’s request, the Company will furnish the Affiliate with copies of receipts and other customary documentation for any expenses for which the Company requests reimbursement hereunder. The Affiliate hereby consents to the Company’s withdrawal of the approved expenses from the Account immediately upon them being due pursuant to this Paragraph 4.
4.3. Third Party Media Spend. If the Affiliate elects to purchase the Media or advertising utilizing the Media Cards through third party providers rather than through the Platform, the amounts of such Media Spend shall not be deemed earned by the Company inasmuch as the Company will be invoiced or charged for such Media Spend by the appropriate third party provider.
4.4. Refunds. Subject to the payment of any appropriate Fees and third-party service providers (if applicable), the Affiliate may request a refund of any unspent funds in the Account and the return of the Reserve.
5. Affiliate’s Representations and Warranties.
The Affiliate hereby represents and warrants to the Company as follows: (i) the Affiliate has filed all requisite forms and is in good standing with the state of its organization and such other states that it transacts business in; (ii) the Affiliate has all requisite power, authority, and capacity to enter into this Agreement and perform its obligations hereunder; (iii) as of the Effective Date, the Affiliate is not in default under any agreement which might cause the Affiliate not to perform or otherwise default pursuant to this Agreement; (iv) the Affiliate’s accounts, accounts receivable, goods (including inventory), are not encumbered by any liens, security interests or other attachments of any kind; (iv) the Affiliate has not sold, granted a security interest in, or otherwise assigned any of its assets, including any part of the funds utilized by the Affiliate to fund the Designated Account(s); (v) the Affiliate’s performance under this Agreement and the Company’s receipt of the compensation identified in Paragraph 4 of this Agreement does not and shall not violate: (a) any contractual obligation the Affiliate may have; (b) any agreements, duties, obligations, or restrictions which the Affiliate may have with any other person or entity; and (c) any Applicable Laws applicable to the Affiliate or its actions taken in furtherance of this Agreement or its Business; and (vi) the Affiliate agrees to comply with all Applicable Laws which are applicable to its Business or this Agreement.
6. Term and Termination.
6.1. Term. Unless terminated earlier in accordance with the terms of this Agreement, this Agreement will commence on the Effective Date and shall continue for successive thirty (30) day terms, which shall be automatically renewed unless one Party informs the other in writing that it wishes to terminate this Agreement.
6.2. Termination. This Agreement may be immediately terminated by the Company at any time if: (i) the Affiliate fails to abide by the duties, terms, conditions, representations, or warranties of this Agreement; (ii) the Affiliate’s representations and warranties as set forth herein are discovered to be false; (iii) the Affiliate disseminates or improperly utilizes the Confidential Information; (iv) the Affiliate circumvents the Company’s business relationships as prohibited in this Agreement; or (v) the Affiliate voluntarily or involuntarily becomes the subject of a petition in bankruptcy or of any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors which is not dismissed within one hundred twenty (120) days or admits its inability to pay its debts as they become due.
6.3. Effect of Termination. Upon termination of this Agreement, the Company shall terminate the Services and, if applicable, return any funds remaining in the Designated Account(s) to the Affiliate, less: (i) any Fees; (ii) any approved expenses incurred by the Company; and (iii) a reasonable reserve not more than ten percent (10%) of the total amount of the funds in the Account or the Designated Account(s). Upon termination, the Company shall no longer be obligated to provide any of the Services or abide by any other obligations under this Agreement; however, all rights conferred upon the Company by this Agreement shall survive the termination of this Agreement, and shall remain in full force and effect until such time as all amounts owed to the Company hereunder have been paid.
7. Indemnification.
The Affiliate shall defend, indemnify and hold harmless the Company and its respective employees, agents, representatives, licensees, and assigns from and against any deficiencies, damages, losses and expenses, such as legal expenses (including reasonable attorneys’ fees, expenses, and disbursements), arising from or in connection with: (i) the Affiliate’s breach of any the terms of this Agreement; (ii) breach of any representation or warranty made by the Affiliate herein; (iii) any act or omission of the Affiliate, or any of its agents, employees, representatives or contractors, or arising from or in connection with the Affiliate’s Business; (iv) any other dealings between the Company and the Affiliate arising under this Agreement. Upon three (3) days’ written notice from the Company to the Affiliate, the Affiliate shall defend the Company against any of the above-identified contingencies at the Affiliate’s expense by legal counsel selected by the Company.
8. Disclaimer of Warranty.
The Affiliate understands, agrees, and hereby acknowledges, that the Company: (i) is not providing marketing or promotion advice with respect to any of the services or products offered by the Affiliate; (ii) does not make any representation or warranty with respect to the viability of any marketing or promotion plans employed by the Affiliate; (iii) does not make any representation or warranty regarding the Media purchased by the Affiliate, or whether the Media or advertising purchased will increase the Affiliate’s revenues or sales; or (iv) that the marketing or promotion plans employed by the Affiliate, or the Media or advertising purchased by the Affiliate is consistent or compliant with the Applicable Laws.
9. Limitation of Liability.
The Affiliate understands, agrees, and hereby acknowledges, that the Company shall not be responsible for any damages, claims, losses, judgments, disputes, proceedings, lawsuits, liability, or anything of the like, incurred by or directed at the Affiliate arising out of or related to this Agreement, or the Company’s performance of the Services under this Agreement. The Company’s maximum liability to the Affiliate for any injuries, damages, claims, losses, expenses, or claimed expenses (including attorneys’ fees) arising out of this Agreement, shall be an amount equal to the Monthly Fee Average multiplied by a period of three (3) months.
10. Relationships of the Parties.
The Company’s relationship with the Affiliate will be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship between the Parties. Furthermore, the Company is not, and shall not be regarded as, a fiduciary of the Affiliate, and will not assume the role of any capacity in which a fiduciary duty is owed. The Company will not manage the marketing plans or promotions which the Affiliate intends to employ, nor shall the Company evaluate the viability of any such plans. The Affiliate hereby acknowledges and agrees that the Company’s relationship with the Affiliate is non-exclusive, and that the Company may have provided, is presently providing, or will in the future provide services to other individuals, businesses, and/or other entities in the Affiliate’s, or outside of the Affiliate’s, industry. The Company will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to the Company’s performance of the Services and receipt of the Fees under this Agreement. Because the Company is an independent contractor, the Affiliate will not withhold or make payments for any employment or income taxes related to the Services.
11. Confidentiality.
11.1. Confidentiality Obligations. The Company views the Confidential Information as essential to the continued operation and success of its business. The Affiliate acknowledges that, during the course of performing this Agreement, the Affiliate will be privy to Confidential Information, including but not limited to the existence and terms of the Company’s relationship with any service providers, including, without limitation, those that maintain the Designated Accounts. The Affiliate agrees that it will not use for its own purposes, will not disclose to any third party, and will retain in strictest confidence, all Confidential Information during the term of this Agreement, and that after termination of this Agreement the Affiliate will use the same degree of care and discretion that the Affiliate uses to protect its own Confidential Information. The Affiliate will be obligated to maintain the confidentiality of the Confidential Information except to the extent: (i) it is or becomes within the public domain through no act of the disclosing party in breach of this Agreement, or (ii) it is required to be disclosed by any Applicable Laws.
11.2. Trade Secrets. The Affiliate agrees and hereby acknowledges that all Confidential Information, whether reduced to writing, maintained on any form of electronic media, or maintained in the mind or memory of the Affiliate, and whether compiled by the Company or the Affiliate, or both, has significant independent economic value to the Company from not being readily known to or ascertainable by proper means by others who can obtain economic value from its disclosure or use, that reasonable efforts have been made by the Company to maintain the secrecy of such information, that such information is the sole property of the Company and that any retention and use of such information by the Affiliate during the term of this Agreement (except in the course of performing its duties and obligations hereunder) or after the termination of this Agreement shall constitute a breach of this Agreement and a misappropriation of the Company’s trade secrets.
11.3. Business Relationships. The Affiliate agrees that it will not at any time, use, directly or indirectly, any Confidential Information, including but not limited to the Company’s existing relationship with financial institutions, banks, or any other vendor or service provider, or the terms and conditions of those relationships, for the benefit of the Affiliate to the exclusion of the Company, or for the benefit of any person or entity other than the Company, without obtaining the Company’s prior written consent. The Affiliate further agrees that it, its employees, officers, directors and agents, and its parent, subsidiary and affiliate companies, will not in any manner whatsoever, circumvent or attempt to directly or indirectly circumvent, the Company’s agreements with the financial institutions that maintain the Designated Accounts, the Company’s vendors, the Company’s employees, or any other strategic business relationship maintained by the Company, for the Affiliate’s own benefit or for any other purpose, without obtaining the Company’s prior written consent.
12. Dispute Resolution.
12.1. Alternative Dispute Resolution. The Parties to this Agreement hereby agree to submit all disputes arising out of, related to, or in connection with this Agreement to final and binding arbitration before JAMS ADR Services, or its successor, or any other arbitration tribunal agreed upon by the Company and the Affiliate, in Orange County, California. The arbitration shall be conducted pursuant to the JAMS Comprehensive Arbitration Rules and Procedures in effect at the time of the filing of the demand for arbitration, before a single arbitrator. The arbitrator shall be a retired judge and shall conduct the arbitration hearing and render final decision in accordance with the laws of the State of California. The arbitrator shall have the discretion to order that the prevailing party be reimbursed for the arbitration fees incurred. The Affiliate acknowledges that it has read and understood the above agreement to arbitrate, and that by entering into this Agreement, the parties hereto, including Affiliate, are waiving a trial by jury in any action or proceeding to which the parties may be parties, arising out of or in any way pertaining to this Agreement. This waiver is knowingly, willingly, and voluntarily made by each party to this Agreement, and each party hereby represents that no representation of fact or opinion has been made by any individual to induce this waiver of trial by jury or to in any way modify or nullify its effect.
12.2. Injunctive Relief. The Company and the Affiliate agree and acknowledge that either Party, in addition to any other rights or remedies which they may possess, shall be entitled to injunctive and other equitable relief to prevent or remedy a breach of this Agreement by either Party, which may be requested from a state or federal court of competent jurisdiction if so required to prevent further or irreparable damage or injury, however, this narrow exception to the parties’ agreement to arbitrate shall in no way operate to invalidate or otherwise circumvent the agreement to arbitrate the Parties’ claims as set forth in this Agreement.
13. Miscellaneous Provisions.
13.1. Duty of Cooperation. The Affiliate shall, from time to time, at the Company’s request, and without further consideration, perform such acts and execute and deliver to the Company such additional and further instruments, documents, and other considerations, as the Company may reasonably request for the more effective consummation of the transactions contemplated hereunder and the Company’s satisfaction under this Agreement.
13.2. Attorneys’ Fees. If any legal action, arbitration, or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled.
13.3. Notices. All reports, communications, requests or notices required or permitted by this Agreement to be given by one Party to the other shall be in writing and shall be deemed to be duly given if sent by facsimile, delivered personally, mailed by certified or registered mail, return receipt requested, or sent by overnight mail delivery to the Party concerned at its address set forth below. Mailed notices shall be deemed to have been given three (3) days after being deposited in the United States mail, or if by overnight mail, on the next working day following the sending thereof, or if by any other means, upon receipt. Either Party may change the address to which such notices and communications shall be sent, by written notice to the other Party, served in the manner described in this paragraph.
13.4. Remedies. Neither Party shall be liable for any consequential or incidental damages claimed or suffered by the other Party as a result of or in connection with such Party’s failure to perform hereunder, nor shall either Party be liable for punitive, special, or exemplary damages alleged by the other Party. The Company shall not be liable to the Affiliate under any legal or equitable theory for any damages, expenses, or losses suffered by the Affiliate resulting from the acts or omissions of any third party or by reason of any act, delay, or omission outside of its direct control.
13.5. Authority. Any person(s) signing this Agreement represent(s) that such person(s) has full power and authority to bind that person’s principal, and that the designated person entering into this Agreement on behalf of the Company or the Affiliate have full authority to enter into and perform this Agreement and that entering into this Agreement and the completion of the obligations pursuant to this Agreement, do not violate any Articles of Incorporation, Articles of Organization, Bylaws, Operating Agreement, Partnership Agreement, or other documents governing the activity of either of the Parties.
13.6. No Assignment. This Agreement and the rights herein are not assignable or transferable by the Affiliate without the Company’s prior written consent. The Company may transfer its rights and/or obligations under this Agreement provided said transfer is incident to a sale of the majority of the Company’s assets, its business, or stock.
13.7. No Partnership. This Agreement shall not constitute a partnership or joint venture between the Parties.
13.8. Entire Agreement. This Agreement, along with the Terms of Use and other agreements applicable to the Affiliate available on the Company’s website, sets forth the entire Agreement among the Parties pertaining to the subject matter of this Agreement and supersedes all prior agreements, understandings, negotiations, and discussions, whether oral or written, among the Parties, and there are no warranties, representations, or agreements between the Parties in connection with the subject matter hereof except as expressly set forth in this Agreement. Any future oral representations or modifications concerning this Agreement shall be of no force or effect unless contained in a subsequent writing signed by the Party to be charged. No agent, employee, or other representative of any Party is empowered to alter any of the terms hereof, unless done in writing and signed by the Party.
13.9. Advice of Counsel/Interpretation. Each Party to this Agreement hereby confirms and admits that it has read and understands the Agreement, and that to the extent deemed necessary by such Party, it has been fully advised and represented by independent counsel with respect to this Agreement and all negotiations giving rise to it, and that it has fully discussed this Agreement with all of its terms, consequences, and ramifications with its respective counsel. This Agreement is the result of the negotiations of the Parties, and each has had significant input into the drafting and construction of this Agreement, and thus, the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. The Parties understand and agree that this Agreement shall be construed fairly as to all parties and not in favor of or against any of the parties regardless of which party has prepared this Agreement, such that the application of California Civil Code Section 1654, providing “[i]n cases of uncertainty not removed by the preceding rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist,” is hereby waived.
13.10. Choice of Law/Jurisdiction. This Agreement, when executed by all of the Parties hereto, shall bind and inure to the benefit of the Parties, their personal representatives, successors, and assigns. This Agreement shall be governed by, enforceable, and interpreted under the laws of the State of California.
13.11. Severability. Should any provision or portion of this Agreement be held unenforceable or invalid for any reason by a court of competent jurisdiction, the remaining provisions and portions of this Agreement shall be unaffected by such holding and shall remain in full force and effect.
13.12. Waiver. No waiver by any Party, whether express or implied, of any provision hereof or of any breach of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach or default of the same or any other term, covenant, or condition, whether pre-existing or subsequent thereto. The failure of either Party to this Agreement to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construed as a waiver thereof or of any future breach or subsequent wrongful conduct.
13.13. Headings. All of the headings used in this Agreement are for convenience and easy reference only and do not define, limit, augment or describe the scope, content, construction or intent of this Agreement or any part hereof.
13.14. Survival. The Affiliate’s obligation to make payment of any amounts due hereunder, and the Parties’ obligations under terms of Section 2 (Definitions), 6 (Term and Termination), 7 (Indemnification), 8 (Disclaimer of Warranties), 9 (Limitation of Liability), 11 (Confidentiality), and 13 (Miscellaneous Provisions) shall survive termination or expiration of this Agreement.
13.15. Changes to the Agreement Marketcall Inc. reserves the right to update this User Agreement at any time, with changes taking effect immediately upon posting on the website. Continued use of the platform constitutes acceptance of any modified terms.
13.16. By signing up and creating an account, you agree to be bound by this User Agreement with Marketcall Inc., a California corporation.
14. Contact Information For any questions or concerns regarding this Agreement, please contact:
Marketcall Inc. 155 S Fairoaks ave, Pasadena, CA 91105 info@marketcall.com cel 323-410-1052
And learn all secret methods used by Marketcall affiliates
For advertisers
For affiliates
Marketing Tools
Fraud prevention
Automatization
Lead generation
Payouts
Support