Marketcall Affiliate Agreement

1.1  "Account" means the record of amounts credited to and debited from the Affiliate maintained by Marketcall on the Platform.

1.2  "Account Balance" means the sum of funds, in U.S. Dollars, credited to the Account and available to the Affiliate, net of any reversals under Section 7.5, adjustments under Schedule A, amounts debited under Section 13.4, and Fees, in each case properly applied under this Agreement.

1.3  "Affiliate," "you" or "your" means the person or entity that has registered for a Marketcall affiliate account and accepted this Agreement, together with its Authorized Users.

1.4  "Applicable Law" means all federal, state, local and foreign statutes, rules, regulations and orders applicable to a party or to the activities conducted under this Agreement, including the Telephone Consumer Protection Act, 47 U.S.C. § 227 and its implementing regulations at 47 C.F.R. § 64.1200 (the "TCPA"), the Amended Telemarketing Sales Rule, 16 C.F.R. § 310 et seq., the CAN-SPAM Act, the Federal Trade Commission Act, and the Privacy Laws.

1.5  "Authorized User" means any person the Affiliate permits to access the Platform or act on the Affiliate's behalf.

1.6  "Call" means a live telephone call generated by the Affiliate and delivered to Marketcall or to an Advertiser through the Platform.

1.7  "Campaign" or "Offer" means a specific advertising program made available to the Affiliate through the Platform, together with the Offer Rules applicable to it.

1.8  "Commission" means the amount payable to the Affiliate for a Qualified Call, at the rate stated on the applicable Offer page at the time the Call was delivered.

1.9  "Consent Record" has the meaning given in Section 5.3.

1.10  "Consumer" means an individual who is the subject of a Call or Lead.

1.11  "Fees" means the amounts set out in Schedule B, as amended from time to time in accordance with Section 12.

1.12  "Inactive Account" has the meaning given in Section 10.1.

1.13  "Lead" means consumer contact information and associated data delivered by the Affiliate through the Platform.

1.14  "Offer Rules" means the rules, qualification criteria, permitted and prohibited traffic sources, negative keywords and other requirements published on the Offer page for a Campaign.

1.15  "Payable Action" means the event that gives rise to a Commission, as defined on the applicable Offer page.

1.16  "Platform" means the Marketcall website, affiliate portal, tracking systems, reporting and related technology.

1.17  "Privacy Laws" means all applicable data protection and privacy laws, including the California Consumer Privacy Act as amended.

1.18  "Qualified Call" means a Call that (a) originates from a real Consumer who is not fraudulently generated, (b) meets all qualification criteria in the applicable Offer Rules, including any minimum duration, (c) was generated through an approved traffic source, and (d) is supported by a valid Consent Record where one is required.

1.19  "Revenue-Generating Activity" means the crediting to the Account of any Commission in respect of a Qualified Call or other Payable Action that has not subsequently been reversed.

1.20  "Unacceptable Call" means a Call that is duplicate, invalid, expired, fraudulent, incentivized, rebroked, or otherwise fails to meet the definition of a Qualified Call.

1.21  Interpretation. Except where the context requires otherwise, a reference in this Agreement to a Call includes any other Payable Action, and a reference to an Unacceptable Call includes any Payable Action that is duplicate, invalid, expired, fraudulent, incentivized, rebroked, or otherwise fails to meet the criteria in the applicable Offer Rules. A reference to a Qualified Call includes a Payable Action that meets those criteria.

2.  ACCEPTANCE AND SCOPE

2.1  This Agreement governs the relationship between Marketcall Inc., a California corporation ("Marketcall," "we" or "us"), and the Affiliate with respect to participation in Campaigns through the Platform, the calculation and payment of Commissions, and the operation of the Account.

2.2  You accept this Agreement by registering for an affiliate account, by applying to or being approved for a Campaign, or by continuing to use the Platform after we have given notice of a new version in accordance with Section 12. Our records of the version you accepted and the date of acceptance are conclusive absent manifest error.

2.3  This Agreement, the Offer Rules for each Campaign in which you participate, the Marketcall Terms of Use and the Marketcall Privacy Policy together form the entire agreement between us with respect to your participation in Campaigns. Where this Agreement conflicts with the Offer Rules, the Offer Rules govern as to the specific Campaign only and only in respect of Campaign-specific matters such as qualification criteria, Commission rates, hold periods, permitted sources and required disclosures; the Offer Rules cannot reduce your obligations or our rights under Sections 4.7 to 4.9, 5, 6, 7.5, 7.6, 8.5, 13, 15 or 16. Where this Agreement conflicts with the Terms of Use as to Commissions, the Account or payouts, this Agreement governs.

2.4  The Marketcall Media Transaction Services Agreement governs the separate media purchasing and card issuance services. It does not govern Commissions, the Account or payouts, which are governed by this Agreement.

3.  ELIGIBILITY AND ACCOUNT

3.1  You must be at least 18 years of age and, if acting as an entity, validly organized and in good standing. Approval of an affiliate account, and of your participation in any Campaign, is at our sole discretion; we may refuse, condition, limit or revoke approval at any time without giving reasons.

3.2  You are responsible for the security of your credentials and for all activity conducted under your Account, whether or not authorized by you. You must not operate more than one affiliate account without our prior written approval.

3.3  You must provide and keep current a valid email address, legal name, business address and payment details, together with any tax documentation and identity verification we reasonably require. We may suspend payouts while required information is outstanding.

3.4  The Account is a record of amounts owed and is not a demand deposit account, savings account or other bank account. No interest accrues on the Account Balance.

4.  PROMOTIONAL STANDARDS AND TRAFFIC VERIFICATION

4.1  General. All advertising must be in a language permitted by the applicable Offer Rules, must be correct and idiomatic in that language, must maintain a professional register, and avoid imagery or claims that could damage the reputation of Marketcall or an Advertiser. You must not state or imply any unique selling proposition, discount, price or guarantee that is not offered by the Campaign, and you must not represent your property as the official website of a brand unless the Offer Rules expressly permit it.

4.2  Approval and suspension of activity. Creatives, landing pages and traffic sources must be approved by us in writing before use. We may withdraw approval at any time, and you must cease the affected activity within twenty-four (24) hours of notice. Where we suspect fraud or a material breach of this Agreement, we may require immediate cessation, in which case you must stop the affected activity immediately upon the notice taking effect under Section 19.1; we may in addition disable tracking links, pause Campaign access or block traffic without prior notice, and no Commission accrues on Calls delivered after the notice takes effect.

4.3  Channel requirements. The materials you must submit when applying to a Campaign, the permitted and prohibited traffic sources, negative keywords, required disclosures and any channel-specific conditions are set out in the Offer Rules and in the application requirements for that Campaign. You must comply with them and with any update we notify to you. Where a Campaign is silent, the standards in this Section apply.

4.4  Live transfers. You must not transfer Consumers who fall outside the Campaign criteria or who have not expressed interest in the advertised product, and you must not re-transfer a Consumer who has already produced a billable Call from you.

4.5  Contact with Advertisers. You may use information from the Offer description, the Offer website and the Offer landing page. For anything further, contact your account manager. You must not contact an Advertiser directly regarding a Campaign.

4.6  Prohibited practices. You must not use incentivized marketing of any kind, including sweepstakes entries, rewards or points offered in connection with generating Calls, nor create the appearance of incentivized marketing. You must not generate Calls through any traffic source that has not been approved. You must not rebroke Calls. Rebroking means delivering a Call sourced from a third-party call provider, network, broker or aggregator, whether or not disclosed, unless that provider has been approved in advance under Section 4.9; where a provider has been approved you remain fully responsible for it under Section 4.9 and must be able to identify the origin of each Call.

4.7  Verification of traffic. We may at any time require you to demonstrate the origin and legitimacy of the traffic you deliver. Within five (5) business days of our request, and in the form we reasonably specify, you must provide:

(a)  complete and unaltered screenshots or screen recordings of the advertising accounts, campaigns, placements, landing pages or tracking systems used to generate the traffic;

(b)  a live video call with screen sharing, at a time we reasonably request, during which you display statistics in the advertising platform, tracking system or other source used to generate the traffic; and

(c)  any other records reasonably necessary to establish the source of the traffic for the period we specify.

Material provided must be complete and unedited for the period requested. Failure to comply within the period is grounds for withholding payment for the affected Calls under Section 8.5, for reversal under Section 7.5(b), and for the sanctions in Schedule A.

4.8  Fraud detection. We are not required to disclose the tools, methods, thresholds, data sources or indicators we use to identify fraudulent or non-compliant traffic, and nothing in this Agreement obliges us to provide information that would compromise their effectiveness. We are not required to give reasons for a reversal, investigation, withholding or sanction beyond identifying the affected Calls, and identifying them satisfies any obligation under this Agreement to state the basis for our action.

4.9  Third parties and traffic sources. You must obtain our prior written approval before engaging any sub-affiliate, publisher, media buyer, call center, traffic provider, aggregator or other third party to generate or supply traffic, and before making any material substitution of, or addition to, an approved provider. You are fully responsible for every traffic source you use and for the acts and omissions of each such person as if they were your own; you must ensure that each of them complies with this Agreement and the Offer Rules, and any act or omission by them that would breach this Agreement if done by you is a breach by you. You must be able to identify the origin of any Call you deliver and must provide details of any such person on request. Our approval of a source or provider does not reduce your responsibility under this Section.

4.10  License and intellectual property. For the term of your participation in a Campaign we grant you a limited, revocable, non-exclusive, non-transferable license to use the creatives, tracking links, phone numbers and other materials we supply for that Campaign, solely for the purpose of promoting it in accordance with this Agreement and the Offer Rules. You must not modify those materials without our written approval, and you must stop using them and remove them from your properties when the Campaign ends, when approval is withdrawn, or on termination. All rights in the Platform, our marks, the Advertisers' marks and the materials we supply remain with us or the Advertiser, and nothing in this Agreement transfers any of them to you.

5.  TCPA AND CONSENT RECORDS

5.1  You represent and warrant that every Call and Lead you deliver is generated in full compliance with the TCPA and all other Applicable Law.

5.2  Where the TCPA requires prior express written consent, you must obtain it before any Consumer is delivered, including consent to receive calls placed to wireless numbers using an automatic telephone dialing system or an artificial or prerecorded voice, calls to residential lines using an artificial or prerecorded voice, and SMS messages sent using an automatic telephone dialing system.

5.3  Consent Records. You must record, collect, store and maintain evidence of each consent, as a sound recording where given verbally or in written form where given in writing (each a "Consent Record"), for the term of this Agreement and for five (5) years after the last consent is obtained. Each Consent Record must include, at minimum, the consent language as displayed, the Campaign name, the source URL, the Consumer's IP address, and a date and time stamp.

5.4  Production. You must produce Consent Records, call recordings, and the name, date, time, IP address and referring URL for any Call within two (2) business days of our request. Failure to produce is grounds for withholding payment under Section 8.5, for reversal under Section 7.5, and for the sanctions in Schedule A.

5.5  Notice before destruction. You must give us at least thirty (30) business days' written notice before destroying or otherwise rendering Consent Records inaccessible. We may take possession of some or all of them within fifteen (15) business days of that notice.

6.  PRIVACY AND DATA

6.1  You must comply with all Privacy Laws, provide Consumers with the notices they require, and offer any opt-out from the sale of personal information that they require. You must provide us with reasonable assistance so that we can meet our own obligations under Privacy Laws.

6.2  Each property you use must carry a clearly labeled and accessible privacy policy that discloses the use of cookies, web beacons and similar technologies by third parties, and that explains the Consumer's options for managing them.

6.3  You must maintain security measures appropriate to the nature of the information you collect, meeting or exceeding industry standards, to protect it from unauthorized access, destruction, use, modification or disclosure.

6.4  Ownership. Once a Call or Lead is accepted, all associated consumer data belongs exclusively to Marketcall or the Advertiser. You must not transfer, license, rent, sell or otherwise distribute it, or use it for your own benefit or that of any third party. Where a Call is rejected and not paid for, no ownership passes to us and the data remains yours.

7.  COMMISSIONS, VALIDATION AND ADJUSTMENTS

7.1  Commissions accrue only on Qualified Calls, at the rate published on the Offer page at the time the Call was delivered. Commission rates may change prospectively on notice; a change does not affect Calls already delivered. Commissions are payable only to the extent we have received payment from the Advertiser for the corresponding Calls; where an Advertiser fails to pay, disputes payment, or becomes insolvent, the corresponding Commissions are not payable and, if already credited or paid, are reversible under Section 7.5.

7.2  Determination. Whether a Call is a Qualified Call is determined by our tracking and reporting systems together with any Advertiser validation applicable to the Campaign. Statistics recorded by the Platform govern and are conclusive absent manifest error.

7.3  Appeals. You may appeal the status of a Call within two (2) business days of the Call being marked "Refused" or "Non-Qualified". After that period the status of the Call becomes final as between us for the purposes of your right of appeal. Expiry of that period ends your right to appeal, and does not limit our rights under Sections 7.5, 7.6, 8.5 or 13, which we may exercise at any time in accordance with those Sections.

7.4  Review of appeals. We will review a timely appeal and aim to respond within thirty (30) days; that period is indicative and we are not liable for delay. Whether an appealed Call is treated as a Qualified Call and paid is determined by the Advertiser for the applicable Campaign, and we do not guarantee that an appealed Call will be paid or that reasons will be given. Where the Advertiser does not respond within the review period, our good faith determination governs, subject to Section 20.

7.5  Adjustments and reversals. We may reverse a Commission already credited where the associated Call is later determined to be an Unacceptable Call, where an Advertiser reverses, disputes or fails to pay for the underlying transaction, or as otherwise provided in this Agreement. Reversals are reflected in your Account on the Platform, which is sufficient notice. No reversal will be made:

(a)  more than seven (7) days after the Call was delivered, in the ordinary course; or
(b)  more than sixty (60) days after the Call was delivered, where the Call was fraudulent, incentivized, rebroked, or generated in breach of the Offer Rules or of Applicable Law, or where you have failed to produce Consent Records under Section 5.4.

The periods in (a) and (b) do not apply where the conduct concerned was concealed from us, was misrepresented to us, or could not reasonably have been discovered within the applicable period through our ordinary monitoring, or where an Advertiser reversal, chargeback, complaint, regulatory inquiry or third-party claim relating to the Call is first raised after that period. In those cases we may reverse the Commission within a reasonable time after we become aware of the relevant facts.

7.6  Recovery of reversed Commissions. A reversal is applied first against the Account Balance. Where the Account Balance is insufficient, we may at our election, and without any obligation to wait for or apply Commissions that may be credited in future, either offset the shortfall against Commissions subsequently credited to the Account or treat the shortfall as a debt owed by you to us, payable within ten (10) business days of our written demand. We may exercise that election in whole or in part and may change it by notice at any time before the shortfall is recovered, provided that the same amount is not recovered more than once. We may recover it by any lawful means, together with our reasonable costs of recovery, including reasonable attorneys' fees. This Section applies to any Commission that was paid and subsequently reversed under Section 7.5, and survives termination of this Agreement and closure of the Account.

8.  PAYOUTS

8.1  Threshold. Your first payout may be requested once your Account has been credited with Commissions for at least ten (10) approved Calls or other Payable Actions, in any combination, and the Account Balance is at least US$300. After your first payout, the minimum payout amount is US$100.

8.2  Waiver of the threshold. The minimum payout threshold in Section 8.1 does not apply, and you may request payout of the full available Account Balance, where:

(a)  you request a final payout and closure of your Account;
(b)  your Account has been or is about to be classified as an Inactive Account under Section 10;
(c)  we terminate this Agreement other than for a reason listed in Section 13.3; or
(d)  we discontinue the Campaigns through which the Account Balance was earned.

This Section removes the minimum threshold only. A payout requested under it remains subject to the hold period in Section 8.4, the anti-fraud review in Section 8.3, our rights of reversal and recovery under Sections 7.5 and 7.6, our right to withhold under Section 8.5, Section 13, and identity and tax verification, and the amount paid is the Account Balance available after those provisions have been applied.

8.3  Process and timing. Once Commissions have cleared the hold period in Section 8.4, you may submit a payout request through the Platform. Each request is subject to an anti-fraud review. Following approval, we will normally initiate payment within one (1) to two (2) business days by the method you have selected from those offered on the Platform; that period is indicative, and the time for funds to reach you depends on the method and the payment provider and is outside our control. Third-party transfer and currency conversion costs are borne as set out in Schedule B.

8.4  Hold period. Commissions are subject to the hold period stated in the Offer Rules for the applicable Campaign, which is ordinarily seven (7) days from the date of the Call. Commissions become available for payout on expiry of that period, subject to Sections 7.5 and 8.5.

8.5  Withholding. We may withhold a payout, in whole or in part, where an investigation under Section 13 is open, where materials requested under Section 4.7 or Consent Records requested under Section 5.4 have not been produced, or where required by Applicable Law. The amount withheld may include Commissions attributable to the suspected breach and, where the suspected breach may extend beyond the Calls already identified, any further Commissions reasonably related to the same traffic source, Campaign or period. Withheld amounts are shown in your Account on the Platform. Amounts withheld and not applied under Sections 7.5, 7.6, 13.4 or Schedule A are released on conclusion of the investigation.

8.6  Taxes. Commissions are stated exclusive of taxes. You are responsible for all taxes, duties and charges arising from Commissions paid to you, and for providing a valid IRS Form W-9 or W-8 (as applicable) and any other tax documentation we reasonably request before your first payout. Where Applicable Law requires us to withhold tax from a payout, we will withhold the required amount and remit it to the relevant authority, and the amount withheld is treated as paid to you.

9.  FEES

9.1  The Fees applicable to the Account are set out in Schedule B. You authorize us to deduct Fees properly due under this Agreement from the Account Balance.

9.2  We may amend Schedule B on not less than thirty (30) days' prior notice sent to the email address on record. A new or increased Fee applies only from the effective date of the amendment.

10.  INACTIVE ACCOUNTS

10.1  Definition. An Account becomes an "Inactive Account" on the first day of the calendar month following twenty-four (24) consecutive months during which (a) the Account Balance has been positive and (b) no Revenue-Generating Activity has occurred.

10.2  Notice. We will send written notice to the email address on record not less than sixty (60) days, and again not less than thirty (30) days, before the first Inactive Account Fee is deducted. Each notice will state the current Account Balance, the amount and frequency of the Fee, the date deductions will begin, and how to stop them.

10.3  Fee. We may deduct from the Account Balance a maintenance fee of twenty U.S. dollars (US$20.00) per month, beginning in the month following the notices required by Section 10.2.

10.4  Cap; no negative balance; no debt. Two separate limits apply. First, the aggregate of all Inactive Account Fees deducted from an Account over its life will not exceed two hundred forty U.S. dollars (US$240.00). Second, no individual monthly deduction will exceed the Account Balance available at the time of that deduction; where the available Account Balance is less than the monthly Fee, the Fee for that month equals the remaining Account Balance and no further Fee accrues. The Inactive Account Fee will never cause the Account Balance to be negative and will never create any debt or payment obligation owed by you to us.

10.5  Stopping the Fee. Any Revenue-Generating Activity, any payout request, or any written communication from you to us concerning the Account stops the accrual of the Inactive Account Fee with effect from the following calendar month. You may at any time request payout of the entire remaining Account Balance under Section 8.2(b).

10.6  Exclusions. No Inactive Account Fee will be deducted where (a) we have suspended, restricted or frozen the Account, (b) a payout request is pending or under investigation, (c) notices under Section 10.2 were sent but not delivered, (d) the Account Balance arises from Campaigns we discontinued, or (e) deduction is prohibited by Applicable Law.

10.7  Hard stop. No Inactive Account Fee will be deducted after thirty-six (36) consecutive months without Revenue-Generating Activity. Any Account Balance remaining at that point is dealt with under Section 11 and is not subject to further deduction.

11.  UNCLAIMED PROPERTY

11.1  Nothing in this Agreement limits our obligations under applicable unclaimed or abandoned property law. Where such law requires an Account Balance to be reported and remitted to a state or other authority, we will do so, and we will not apply any Fee in a manner inconsistent with that law.

11.2  Before reporting an Account Balance as unclaimed property we will attempt to contact you by email to the extent required by Applicable Law. Once a balance has been remitted to a state, our obligation to you in respect of that balance is discharged in full, and any claim you have is against the relevant state authority.

11.3  You are responsible for keeping your contact details current. We are not liable for failure to reach you at an address you have not updated.

12.  CHANGES TO THIS AGREEMENT

12.1  We may amend this Agreement. Except where a change is required by Applicable Law or is favorable to you, we will give not less than thirty (30) days' notice by email to the address on record before the change takes effect.

12.2  Where an amendment materially changes the calculation of Commissions, the payout terms or the Fees, and you do not wish to continue on the amended terms, you may request payout of your Account Balance under Section 8.2(a) at any time before the amendment takes effect. Amounts already earned are calculated under the version in force when the relevant Calls were delivered.

12.3  Each version of this Agreement is numbered and dated. Our records of the versions published, and of the version you accepted and when, are conclusive absent manifest error.

13.  SUSPENSION, INVESTIGATION AND TERMINATION

13.1  Term and termination for convenience. This Agreement takes effect on your acceptance and continues until terminated. Either party may terminate it at any time on written notice. Termination does not affect Commissions already earned on Qualified Calls, which remain payable subject to Sections 7.5, 7.6, 8 and 13.4.

13.2  Suspension. We may suspend your Account or your participation in a Campaign where we reasonably suspect a breach of this Agreement or of Applicable Law. We will notify you of the suspension by email. You may make written submissions, which we will consider. We aim to complete the investigation within thirty (30) days of the suspension notice. We may extend that period by written notice stating the reason, for as long as is reasonably necessary, where the matter requires input from an Advertiser, carrier, payment provider or other third party, where it is the subject of a regulatory inquiry or third-party claim, or where further material is required from you. The period does not run while a request under Section 4.7 or Section 5.4 remains outstanding.

13.3  Termination for cause. We may terminate immediately where you have: (a) engaged in fraud, incentivized traffic, rebroking, the operation of more than one affiliate account without our prior written approval under Section 3.2, or the use of any account not disclosed to us; (b) violated the TCPA or other Applicable Law; (c) failed to produce Consent Records under Section 5.4 or to provide materials, access or a screen-sharing session requested under Section 4.7 within the period allowed; (d) provided evidence, statistics or records that are false, incomplete, edited or otherwise altered; (e) engaged or used an unapproved third party in breach of Section 4.9, or failed to identify the origin of a Call; (f) failed to cease activity when required under Section 4.2; or (g) committed any other material breach of this Agreement, or any breach that is repeated after we have given notice of it.

13.4  Effect on the Account Balance. Where we terminate under Section 13.3, we may reverse Commissions attributable to the conduct concerned and set off amounts you owe us under Sections 7.6 and 15. This includes debiting from the Account Balance any amount we have refunded or credited to an Advertiser in respect of fraudulent Calls attributable to you. Any Account Balance remaining after those adjustments remains payable to you and will be paid on request following completion of any investigation under Section 13.2, subject to Sections 7.5, 7.6, 8.3 to 8.5 and to identity and tax verification, or dealt with under Section 11. Suspension or termination of an Account does not by itself extinguish your right to Commissions properly earned on Qualified Calls.

13.5  Sanctions. The sanctions in Schedule A apply to the violations listed there. We may apply a lesser sanction than the one listed. Where a sanction involves reversal of Commissions, Sections 7.5 and 7.6 apply. Where a sanction involves an adjustment under Schedule A, you authorize us to deduct the adjustment from the Account Balance, and any shortfall is recoverable in the manner provided in Section 7.6.

14.  REPRESENTATIONS AND WARRANTIES

14.1  You represent and warrant that (a) you have full power and authority to enter into this Agreement; (b) your performance does not breach any other agreement binding on you; (c) your marketing activities and every Call and Lead you deliver comply with Applicable Law; (d) you own or control every property from which you generate traffic, or have written authority to use it; (e) all traffic sources you use have been disclosed to and approved by us; and (f) all statistics and records you provide are accurate and complete.

15.  INDEMNIFICATION

15.1  You will indemnify, defend and hold harmless Marketcall and its officers, directors, employees, agents and Advertisers from and against any loss, cost, claim, action, judgment or damage, including reasonable attorneys' fees, arising out of or relating to (a) your breach of this Agreement, (b) any Call, Lead or marketing activity you conduct, including any claim under the TCPA or the Privacy Laws, or (c) any claim by a Consumer relating to traffic you generated.

15.2  We may, at our election, control the defense and settlement of any claim for which indemnity is sought, at your expense, and you will cooperate fully. Any failure or delay in notifying you of a claim does not relieve you of your obligations under this Section except to the extent you are materially prejudiced by it. We may withhold pending payouts and apply them toward your obligations under this Section to the extent of the amount reasonably in dispute.

15.3  We give no indemnity to you under this Agreement.

16.  DISCLAIMER AND LIMITATION OF LIABILITY

16.1  The Platform, the Campaigns and any materials we supply are provided on an "as is" and "as available" basis, without warranty of any kind, and we disclaim all implied warranties, including merchantability, fitness for a particular purpose and non-infringement. We do not warrant that the Platform will be uninterrupted, secure or error-free, and we make no representation as to the volume of Calls, the level of Commissions, the conduct or solvency of any Advertiser, or the continued availability of any Campaign. We are not liable for Calls not recorded by the Platform, for tracking or attribution discrepancies, or for failures of carriers, payment providers or other third parties.

16.2  Our liability. Subject to Sections 16.4 and 16.5, we are not liable for consequential, indirect, incidental, punitive, special or exemplary damages, including loss of profits or business interruption, and our aggregate liability arising out of or relating to this Agreement will not exceed the total Commissions paid to you during the three (3) months immediately preceding the date the claim arose.

16.3  Your liability. Nothing in this Section 16 limits or excludes your liability, and no cap or exclusion applies to: (a) your obligations under Section 15.1; (b) your breach of Section 5 (TCPA and Consent Records), Section 6 (Privacy and Data), Section 17 (Confidentiality) or Section 18 (Non-Circumvention); (c) amounts owed under Section 7.6; (d) any liability arising from your fraud, willful misconduct or concealment; or (e) your responsibility under Section 4.9 for third parties and traffic sources. For the avoidance of doubt, the exclusion of consequential and indirect damages in Section 16.2 applies to us only and does not limit your obligations under Section 15.1.

16.4  Nothing in this Section limits our obligation to pay Commissions properly earned or to deal with the Account Balance in accordance with Sections 8, 11 and 13.4.

16.5  Limits required by law. Nothing in this Agreement excludes or limits the liability of either party to the extent that the exclusion or limitation is not permitted by Applicable Law, including liability for fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, within the meaning of California Civil Code section 1668. Each exclusion and limitation in this Agreement applies only to the maximum extent permitted by Applicable Law, and if any is held unenforceable it will be limited rather than severed to the extent necessary to give effect to the remainder.

17.  CONFIDENTIALITY

17.1  You will keep confidential all non-public information you obtain from us or through the Platform, including Commission rates, Advertiser identities, Campaign performance data, Offer Rules and the terms of any individual arrangement, and will use it only for the purposes of this Agreement. This obligation survives for three (3) years after termination. It does not apply to information that is public through no fault of yours. Our handling of information about you is governed by the Marketcall Privacy Policy.

18.  NON-CIRCUMVENTION

18.1  During the term and for six (6) months after termination you will not knowingly circumvent our relationship with an Advertiser introduced to you through the Platform by contracting directly with that Advertiser for services of the kind provided under this Agreement. This does not apply where you can show that you had a relationship with that Advertiser before the date on which you first accepted this Agreement, or where the Advertiser's identity was publicly known to you independently of the Platform.

19.  NOTICES

19.1  We give notice to you by email to the address on record, and email is our sole method of notice. You give notice to us by email to legal@marketcall.com with a copy by mail to the address in Section 21.6. Notice by email from us is effective on the business day following transmission, except that a notice requiring immediate cessation under Section 4.2, a notice of suspension under Section 13.2 and a notice of termination under Section 13.3 each take effect on transmission. You are responsible for keeping the email address on record current and for monitoring it, and a failure to receive or read a notice sent to that address does not affect its effect.

19.2  Our records of the transmission of a notice are conclusive of the giving of the notice and of the time at which it took effect, absent manifest error.

20.  DISPUTE RESOLUTION

20.1  This Agreement is governed by the laws of the State of California, without regard to its conflict of laws principles.

20.2  Any dispute arising out of or relating to this Agreement will be resolved by final and binding arbitration before JAMS in Los Angeles County, California, before a single arbitrator, under the JAMS Streamlined Arbitration Rules. Either party may bring a qualifying claim in small claims court, and either party may seek injunctive relief in a court of competent jurisdiction to protect its intellectual property or confidential information.

20.3  Arbitration will be conducted on an individual basis. The arbitrator may not award class-wide relief. Each party waives any right to participate as a class representative or class member.

21.  MISCELLANEOUS

21.1  Independent contractors. The parties are independent contractors. Nothing creates a partnership, joint venture, agency or employment relationship.

21.2  Assignment. You may not assign this Agreement without our written consent. We may assign it in connection with a merger or a sale of all or substantially all of our assets or business.

21.3  Severability. If any provision is held invalid or unenforceable, it will be limited or severed to the minimum extent necessary and the remainder will continue in effect.

21.4  Survival. Sections 4.9, 4.10 (as to cessation of use and ownership), 5.3 to 5.5, 6.4, 7.5, 7.6, 8.6, 11, 15, 16, 17, 18, 20 and 21 survive termination, together with any provision that by its nature is intended to survive.

21.5  No waiver. Our failure or delay in exercising any right or remedy under this Agreement, or our acceptance of any performance, does not waive that right or remedy or any later breach. Any waiver must be in writing and signed by us.

21.6  Notices to Marketcall. Marketcall Inc., 155 S Fair Oaks Avenue, Pasadena, CA 91105, Attn: Legal Department, legal@marketcall.com.

SCHEDULE A  —  SANCTIONS

The following sanctions apply to the violations listed. We may apply a lesser sanction. A suspension is subject to the investigation and notice requirements of Section 13.2, and does not by itself extinguish Commissions properly earned on Qualified Calls.

Note on the live transfer adjustment. This note applies only to the adjustment in the row for transferring Consumers who are not interested in, or do not qualify for, the product. The parties agree that the loss caused by that violation is difficult to determine precisely at the time this Agreement is entered into, as it includes the cost of review and investigation, remediation with the Advertiser, loss of Advertiser confidence and the risk of further non-qualifying transfers from the same source, and that the adjustment below is a reasonable pre-estimate of that loss. The adjustment is calculated and applied as follows:

(a)  Amount. The adjustment equals the total Commission value of the ten (10) Calls delivered by you under the affected Campaign immediately preceding the first non-qualifying transfer identified in the episode concerned. Where fewer than ten such Calls have been delivered, the adjustment equals the Commission rate published for the Campaign at that time multiplied by ten (10).

(b)  Frequency. One adjustment applies per episode, being one investigation under Section 13.2 in which one or more non-qualifying transfers are identified, regardless of the number of transfers identified in that investigation. A further episode gives rise to a further adjustment, and repeated episodes are also subject to the repeat-violation sanction in the table.

(c)  Relationship to other remedies. The adjustment is applied in addition to reversal of the affected Calls under Section 7.5. It is credited against any amount recovered from you under Section 15 in respect of the same conduct, so that the same loss is not recovered twice.

Any violation of the laws or regulations of the United States, or of any other jurisdiction to which you direct traffic, will result in suspension of the Account pending investigation and may result in termination. We reserve all rights and remedies available to us.

SCHEDULE B  —  AFFILIATE ACCOUNT FEES

Fees payable in connection with Media Cards and media purchasing are set out separately in the Schedule of Fees to the Marketcall Media Transaction Services Agreement and do not apply to the Account.