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Reply! Click Buyer Agreement

IMPORTANT – PLEASE READ CAREFULLY: BY CHECKING THE "I AGREE" BOX AND CONTINUING WITH YOUR REGISTRATION OR BY USING THE SERVICES AND THE SYSTEM AS PROVIDED BY REPLY! INC., YOU (ON BEHALF OF YOURSELF OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF AN ENTITY) AGREE TO ALL THE TERMS OF THIS Reply! Click Buyer Agreement (THE "AGREEMENT") WITH REPLY! INC. ("REPLY!"), REGARDING YOUR USE OF THE SERVICES AND THE SYSTEM. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU WILL NOT BE ABLE TO USE THE SERVICES, THE SYSTEM OR BE ABLE TO BUY CLICKS. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE THAT YOU ACCEPT THIS AGREEMENT BY CHECKING THE "I AGREE" BOX AND CONTINUING. Reply! and you are collectively called "the Parties" or individually a "Party".

Subject to the terms and conditions of this Agreement and to the terms and conditions of Site Terms of Use, which is incorporated into this Agreement by this reference, Reply! hereby grants you a limited, non-exclusive license to use the Reply! Click Marketplace system ("System") for the purchase of an online consumer who clicks on an advertisement hosted by and/or approved by Reply!, specifies the type of service he is interested in receiving, provides the geography where he is looking to receive the service, and is then transferred to a relevant web page designated by you ("Click").

You represent and warrant that you are at least 18 years old, that you have the full power and authority to enter into this Agreement on behalf of yourself or your company, and that any of your employees, agents, representatives, or any person or entity acting on your behalf with respect to buying Clicks through the System will be bound by this Agreement.

1. Click Buyer Rights and Obligations.

a. System Access. You will have access to the System for the express and sole purpose of purchasing Clicks. You will access the System through a web-based account management tool that will provide a summary of purchased Clicks, your account balance and payment history, and other information associated with your account.

b. Delivery. Reply! will send Clicks to websites designated by you and will track those Clicks in the System. To ensure delivery, you agree to periodically review the System for the receipt of Clicks. You agree to send Clicks to websites that are relevant to the category of Clicks purchased by you. For example, Clicks from consumers interested in buying a vehicle will be transferred a website that provides information or services related to the purchase of a car. You are prohibited from buying Clicks in one category and requesting that Reply! direct those Clicks to a website that is unrelated to the purchased Click category. Reply! reserves the right to review and approve all websites that are designated as the destination website for Clicks in the System. Reply! may immediately suspend or terminate your account and may withhold any and all credit balance associated with your account at the time of the violation if you redirect Clicks to websites that violate the terms of this Agreement. In addition, you are subject to liquidated damages of $2,500 for each time that you redirect a Click to a website that is focused on: death and tragedy; gross and bizarre content; sexually explicit content; and/or gambling. Such liquidated damages are not a penalty and are a reasonable estimate of the potential loss to Reply!.

c. Reporting. Reply! will report the number of Clicks delivered to you on a daily, weekly and monthly basis through the System’s account management tool. Reply!’s reporting of Clicks delivered in any given period will be the definitive report and will determine the payment amount owed by you to Reply!.

d. Controls. You have the right to change the price you will pay per Click, your coverage, the types of Clicks you will receive, and your budget settings through the System’s account management tool. Such changes will be effective within sixty (60) minutes of the changes being made in the System.

2. Click Generation Guidelines. Clicks will be generated from consumers who click on approved advertisements and provide basic information about the service they are interested in. Publishers are the individuals or companies that undertake specific marketing activities to generate the Clicks. Publishers generally are required to agree to abide by the following Click Generation Guidelines:

a. Generation Methods. Clicks must be generated by an individual consumer (not a machine, any automated process, or a click farm) through the completion of a form that is owned by, operated by, or affiliated with the Publisher. In addition, Clicks submitted for a category must provide the basic information required by Reply! for that particular category.

b. Incentivized Clicks. Reply! prohibits Clicks generated by misleading the consumer or by providing the consumer a reason to believe that they will receive a prize, gift, payment or pecuniary benefit as a result of clicking on an advertisement.

c. Compliance with Applicable Laws. Publishers represent and warrant that they have complied with all applicable laws regarding their collection and sale of the Clicks and that they have the right to sell the Clicks. However, Reply! can not ensure the practices of the Publishers and Reply! makes no guarantee that the Publishers have complied with all of the laws and licensing requirements with respect to collecting and/or selling Clicks. Reply! will, however, take appropriate action within Reply!’s full discretion, including termination of the relationship, against any Publisher that violates this provision.

3. Payments.

a. Pre-Paid Accounts. You will pay Reply! for all Clicks that are provided to you through the System based on the bids that you have established in your account. At the time your account is established, your credit card on record will be charged a pre-payment amount based on your account settings. Each time a Click is sold to you through the System, your account balance will be debited for the cost of the Click. Once your account balance reaches 10% of the initial amount charged, your credit card will be charged based on the account settings.

b. Payment Term Accounts. To the extent that you qualify for payment terms as indicated by Reply!, your payment terms will be determined by a Reply! Account Manager and such payment terms will control over this Section 3.

c. Collections. To the extent that Reply! must engage a collection agency or initiate legal proceedings to collect any amounts owed to Reply! (whether paid through credit card or, you agree to pay for all costs (including legal fees) associated with the collection of the amount owed.

d. Payment Information. To ensure proper and timely payment, you agree to maintain with Reply! an accurate address, other contact information, and credit card information (as applicable) at all times.

4. Confidentiality. During term of this Agreement and for two (2) years thereafter, except (i) as may be required by law, regulation, or court order; (ii) on a need to know basis to employees, consultants, counsel, accountants, investors or other professional advisers of the Parties; (iii) in connection with required tax and accounting disclosures; and (iv) as specified below and under Publicity:

a. Non-Disclosure of Confidential Information. The Parties agree (i) not to disclose to any third party or use any Confidential Information disclosed by the other Party except as expressly permitted in this Agreement and (ii) to take all reasonable measures to maintain the confidentiality of all Confidential Information in Party’s possession or control.

b. Confidential Information. For the purposes of this Agreement, "Confidential Information" means information about a Party (or its partners’ or customers’) business or activities that is proprietary and confidential, which shall include business, financial, technical and other information which is marked as "confidential" or "proprietary" (or similarly), received from a Party related to Agreement, or ought in good faith to be treated as confidential.

c. Non-Confidential Information. Confidential Information will not include information that (i) is in or enters into public domain without breach of this Agreement; (ii) Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) Party knew prior to receiving such information from other Party or develops independently.

d. Self-Identification. You agree to treat your identity confidential within the System and not take any actions that are aimed to reveal through the use of the System your identity to the Publishers.

5. Publicity. Each Party agrees to not use the name, graphical images or logos of the other Party or any of its websites in any press release or any sales or marketing efforts without the written consent of the other Party.

6. Term and Termination

a. Term. This Agreement shall commence on the Effective Date and continue in perpetuity until terminated.

b. Termination. Either of the Parties may terminate this Agreement, with or without cause, immediately upon delivery of written notice to the other Party as follows: to Reply! at termination@reply.com or to you at the email address or addresses listed in your account at the time of termination.

c. Rights Upon Termination. Except as expressly provided, upon the termination of this Agreement, all rights, duties and obligations of the Parties hereunder shall terminate, except to the extent that either party violated the Agreement and claims related to that violation remain intact. In addition, the following sections shall survive post-termination: Compliance with Applicable Laws, Confidentiality, Indemnification and Limitation of Liability.

7. Indemnification. You agree to defend, indemnify and hold-harmless Reply! and its affiliates, officers, directors, employees and consultants, from and against any and all claims, losses, liabilities and damages of any kind resulting from a breach of your representations and warranties or from your access to and use of the System or the services provided hereunder.

8. Limitation of Liability. REPLY! WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF REPLY! HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, REPLY!’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED, IN ANY EVENT, THE TOTAL FEES PAID OR PAYABLE TO YOU HEREUNDER DURING THE PRIOR THREE MONTHS OF THE AGREEMENT.

9. Disclaimer. REPLY! MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THIS AGREEMENT, THE SERVICES OR THE SYSTEM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, REPLY! DOES NOT MAKE ANY REPRESENTATION THAT THE OPERATION OF ITS WEBSITE, THE SERVICES OR THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE, AND NEITHER PARTY WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. REPLY! DOES NOT REPRESENT OR WARRANT THAT ANY OF THE CLICKS PURCHASED BY YOU WILL BECOME YOUR CUSTOMERS OR GENERATE REVENUE FOR YOU.

10. No Joint Venture. Nothing herein contained shall be construed to place the Parties in a relationship of joint ventures, and neither Party shall have the power to obligate or bind the other in any manner whatsoever. The Parties enter into this Agreement as independent contractors.

11. Severability & Validity. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, in whole or in part:

a. The validity, legality and enforceability of any of the remaining provisions or portions of this Agreement shall not in any way be affected or impaired thereby and this Agreement shall nevertheless be binding between the Parties.

b. Such provision shall be deemed to be restated to reflect as nearly as possible the original intensions of the Parties in accordance with applicable law, and the remainder of the Agreement shall remain in full force and effect.

12. Assignment. You may not assign this Agreement, in whole or in part, without Reply!’s prior written consent, and any attempted assignment without such consent shall be null and void. Notwithstanding the foregoing, consent will not be required for assignment or transfer made by operation of law or when an entity acquires substantially all of your stock, assets or business, in which case the assignment occurs automatically upon the consummation of the sale. Reply! may freely assign or transfer this Agreement at any time and will provide you with written notice of that assignment or transfer to the email address associated with your account at that time.

13. No Waiver or Modification. No term or provision hereof will be deemed waived or modified, and no variation of terms or provisions hereof shall be deemed consented to, except as expressly provided herein, unless such waiver or consent is in writing signed by the Party against whom such waiver or consent is sought to be enforced. Any delay, waiver or omission by either Party to exercise any right or power arising from breach or default of this Agreement by the other Party shall not be construed to be a waiver by that Party of any subsequent breach or default.

14. Headings. The descriptive headings in this Agreement are inserted for convenience to navigate and reference provisions only and except to reference provisions do not constitute a part of this Agreement.

15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of California, without reference to conflicts of law rules. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located in San Francisco County, California. The parties agree the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The prevailing party in any litigation shall be entitled to seek attorney’s fees.

16. Entire Agreement and Modifications. This Agreement together with the Site Terms of Use is the entire, complete and final agreement between the Parties and supersedes all prior and contemporaneous agreements. Reply! may modify this Agreement at any time and will provide you with written notice of that modification to the email address associated with your account at that time. Your continued use of the Services and/or System after notice of such modifications means that you agree to the new terms, even if you have not reviewed the changes.

Last updated: November 17, 2008