Company Publisher Program Terms & Conditions

 

 

1.                  OVERVIEW.

 

A.    You (“You” or “Publisher”) and NC Financial Solutions, LLC (“Company”) have entered into an agreement which approves Publisher for the Company Publisher Program (“Program”).  As part of the Program, Company offers you and other approved publishers access to certain marketing materials through this website operated by LinkTrust (the “Site”) so that Publisher can provide promotional and marketing services (“Services”) through owned or third party websites where Publisher has the legal right and consent to promote such materials in the performance of the Services.  In exchange for Publisher’s promotion of Company, Company shall pay Publisher a fee (as defined in the applicable statement of work (“SOW”) or insertion order) for referring visitors to Company.

 

B.     You agree to the terms and conditions outlined herein (“Terms and Conditions”).  These Terms and Conditions are applicable to Publisher’s membership in the Program, use of the Site, and use of the Promotional Materials (as defined below).

 

C.     You agree to use the Site and any additional services offered by Company in the future only in accordance with these Terms and Conditions.  Company reserves the right to make changes to the Site and the Terms and Conditions at any time.  Your continued use of the Site after any such modification and notification thereof shall constitute your consent to such modification.

 

D.    The parties acknowledge that the Site is operated by a third party, LinkTrust.  You agree to abide by the LinkTrust Terms and Conditions included on the Site.

 

2.                  PARTICIPATION.

                                                                                                       

A.  Publisher’s ongoing participation in the Program is contingent on Publisher following the provisions of these Terms and Conditions.  At any time and in Company’s sole discretion, Company may immediately suspend or terminate Publisher from its participation in the Program for violating any of the provisions of these Terms and Conditions.

 

B.  Other than for the payment of commissions set forth in the applicable SOW or insertion order, Publisher shall have no claims to any additional compensation, commissions or business derived by or through a Company Website (as defined below) or Telephone Numbers (as defined below).

 

C.  Participation in the Program does not constitute an employment, broker or agency relationship between Publisher and Company nor does it create any partnership, joint venture, franchise, or sales representative relationship between the parties. It is the parties intention that Publisher’s personnel shall have independent contractor status and not be an employee for any purposes, including, but not limited to, the application of the Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, the State Revenue and Taxation Code relating to income tax withholding at the source of income, the Workers' Compensation Insurance Code 401(k) and other benefit payments and third party liability claims.

 

3.                  USE OF THE SITE & COMPANY MATERIALS.

 

A.    Definitions.

    1. “Associated Text” refers to the text Publisher displays above, below, to the left, or to the right of a Link or Telephone Number placed by Publisher.
    2. “Brand Feature” refers to the trade names, trademarks, service marks, logo, or similarly identifying materials of Company, as well as all related intellectual property rights of Company, which Company has authorized Publisher to use subject to these Terms and Conditions.
    3. “Company Product or Service” refers to any product or service Company provides on and through the Company Website.
    4. “Company Website” refers to any website owned by Company whereby Company offers products or services to consumers.
    5.  “Law” means any and all applicable statute, law, treaty, ordinance, rule, regulation, order, writ, injunction, decree, judgment, or opinion from any governmental authority including but not limited to laws regarding (i) the use, promotion, advertisement, or marketing of the Links by Publisher including but not limited to any law applicable to deceptive or misleading advertisement practices and (ii) the operation of Publisher and/or Publisher’s Websites.
    6.  “Link” means a hypertext and/or graphical link which allows a Publisher Originated Visitor to automatically transfer from Publisher’s
      Website to a Company Website.
    7.  “Promotional Materials” means the materials Publisher distributes to potential customers through various media channels that contain the Licensed Materials (defined below).
    8. “Publisher Originated Visitor” refers to an individual who selects either a Link provided by Publisher or calls a Telephone Number provided by Publisher in print media or on a Publisher’s Website that automatically transfers or dials that individual to the Company Website or Company’s call center, respectively.
    9. “Publisher Website” means a website owned, operated or controlled by Publisher which contains a Link.
    10. “Telephone Number” refers to the unique telephone numbers provided by Company to Publisher which allows Company to track calls.

 

B.     The Site allows Company to post marketing materials from Company or its affiliates on the system.  Company may change its marketing materials at any time unless otherwise specified upon reasonable notice to Publisher.  Publisher agrees to use the Promotional Materials it distributes on various media channels, such as Publisher’s Website or affiliated websites, in accordance with these Terms and Conditions.  In full satisfaction for any and all Services rendered by Publisher for Company under the Terms and Conditions, Company will pay Publisher the fees set forth in the SOW or insertion order within thirty (30) days of Company’s receipt of an accurate invoice.

 

C.     Publisher Websites and affiliated websites must meet the following criteria:

a.       Be content-based, not simply a list of links or advertisements, nor can the Publisher Websites be centered around making money off of Company advertisements

b.      Be written in English and contain only English language content, unless otherwise agreed to by the parties

c.       Have a top-level domain name

d.      Cannot offer incentives to users to click on ads; incentives include but are not limited to awarding them cash, points, prizes, contest entries, etc.

e.       Be fully functional at all levels; no “under construction” sites or sections

f.       Spawning process pop-ups and exit pop-ups are prohibited

 

D.    The content of Publisher Websites and affiliated websites cannot infringe on any personal, intellectual property or copyrights including but not limited to:

a.       Racial, ethnic, political, hate-mongering or otherwise objectionable content

b.      Investment, money-making opportunities or advice not permitted under law

c.       Gratuitous violence or profanity

d.      Material that defames, abuses, or threatens physical harm to others

e.       Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.

f.       Software Pirating (e.g., Warez, Hotline)

g.      Hacking or Phreaking

h.      Any illegal activity whatsoever

i.        Any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic

E.     Grant of License. 

a.       Publisher acknowledges and agrees that Publisher does not have, nor will claim any right, title, or interest in the Site software, applications, data, methods of doing business or any elements thereof.  Publisher may only access the Site via web browser, email or in a manner approved by the Company.  Site integration tags must NOT be altered.  Altering tags may jeopardize Publisher’s ability to be compensated.

b.      Company grants to Publisher a non-exclusive, non-transferable, revocable right to display and post the Brand Features, Links, Telephone Number, and Associated Text (“Licensed Materials”) provided to Publisher by Company solely for the performance of the Services.  Publisher acknowledges and agrees that all uses of the Licensed Materials and goodwill associated therewith will inure to the sole benefit of Company.  For the avoidance of doubt, Publisher acknowledges and agrees that Publisher shall be held liable for any usage of Licensed Materials that would be found to be a violation of Sections 3(E) through 3(K) of these Terms and Conditions.

 

F.      Title to Licensed Materials.  Publisher agrees not to use the Licensed Materials in any manner that is defamatory, disparaging, misleading, deceptive, libelous, obscene, illegal, fraudulent, infringing or that otherwise portrays Company in a negative light or is otherwise inappropriate or objectionable to Company, in Company’s sole discretion. Company reserves all of its respective rights in the Licensed Materials covered by the license granted in Section 3(E).  Other than the license granted in Section 3(E), Company retains all, right, title, and interest that subsist in all of its intellectual property (whether or not registered) and no other right, title or interest is transferred hereunder.

 

G.    Use of Links and Brand Features.

a.       Appropriate Use of Links and Brand Features.  Publisher shall (i) promptly promote the Licensed Materials or place them in print media as directed by Company and (ii) notify Company when using any advertising or marketing materials (including, but not limited to, private label websites, banners, textual advertisements and/or other creative intellectual property) that promotes the Company Products or Services if (a) such advertising or marketing materials includes the Licensed Materials or any reference to Company, or (b) Company is the exclusive recipient of all traffic or calls originating from such advertising or marketing materials.

b.      Restrictions on use of Links and Brand Features. Publisher shall not (i) place any Link or Telephone Number in any unauthorized print media, search engine, newsgroup, banner network, counter, chat room or guest book; (ii) mask or cause others to mask the Publisher Website’s address making it appear as though such Publisher Website’s address is an official Company Website link; (iii) automatically redirect Publisher Originated Visitors in Publisher’s search advertisements; (iv) alter, remove, or otherwise customize the Links, Brand Features, or Associated Text to use in the Promotional Materials without receiving prior written consent of Company; or (v) use or display the Links or Associated Text in a manner that is disparaging, defamatory, misleading, deceptive, libelous, obscene, illegal, fraudulent, infringing or otherwise damaging to the reputation of Company, or the goodwill associated with Company’s trademarks or brand, or that is otherwise inappropriate or objectionable to Company, in Company’s sole discretion; or post, provide, display, distribute, or otherwise promote the Licensed Material on any third party materials (including but not limited to websites and/or pamphlets) for which Publisher does not have consent from such third party or which violates such third party’s guidelines for such content.

 

H.    Promotion.

a.       Allowed Promotions.  Publisher is free to promote its websites and place ads in print media approved by Company.  Publisher acknowledges that any use of the Promotional Materials is subject to these Terms and Conditions.   When using Company’s Licensed Materials, Publisher may post to newsgroups to promote Company so long as the newsgroup specifically welcomes commercial messages and advertisements.

    1. Restrictions.  Publisher acknowledges that Company prohibits the use of certain forms of advertising, marketing and promotion in connection with the use of its Licensed Materials.  As such, Publisher acknowledges and agrees when using the Licensed Materials, Publisher shall not:

                                                                i. use the advertising method commonly referred to as “spamming” and as such may be defined or restricted under Law, including but not limited to unsolicited communications laws;

                                                              ii. send emails;

                                                            iii. make unsolicited phone calls without having first received consent from such recipient;

                                                            iv. post to non-commercial newsgroups;

                                                              v. cross-post to multiple newsgroups at once;

                                                            vi. advertise on websites or print media which advocate, permit or contain illegal, hate group, gambling, pornographic or adult themes or any other website that may damage the reputation of Company or goodwill of Company’s brand features, Company, or any affiliate of Company, or would otherwise be considered inappropriate or objectionable by Company, in its sole discretion;

                                                          vii. advertise in any way that effectively conceals or misrepresents Publisher’s identity or domain name; or

                                                        viii. transmit any “interstitials,” “Parasiteware,” “Parasitic Marketing,” shopping assistant application, toolbar installations and/or browser add-ons, spyware, malware, or any other software application of any kind to any consumers from the time the consumer clicks on the link bringing such consumer to a Publisher Website until such consumer has fully exited the Publisher Website (i.e. until no page from a Publisher Website or the Company Website is still visible on the consumer’s display or in the consumer’s computer’s memory).

 

As used herein, “Parasiteware” or “Parasitic Marketing” means an application that (a) through accidental or direct intent causes the overwriting of Publisher’s commission tracking cookies through means other than a user-initiated click on a qualifying Link in any Promotional Material; (b) intercepts consumers’ internet searches in a search engine (including but not limited to Google, Bing, MSN, Yahoo, Overture, AltaVista, Hotbot and other similar search or directory engines) to redirect traffic through an installed software, thereby causing commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a consumer would under normal circumstances have arrived at the same destination through the results given by the search; (c) set commission tracking cookies through loading of Publisher Website IFrames, hidden links or automatic pop-ups that open the Company Website; (d) targets text on websites, other than those websites 100% owned by Publisher, for the purpose of contextual marketing; or (e) removes, replaces or blocks the visibility of any link or banner with any Link on websites other than those 100% owned by Publisher.

    1. At all times, Publisher shall clearly represent itself and the Publisher Websites as independent from and not sponsored, endorsed or affiliated with Company.

 

I.       Additional Publisher Obligations and Restrictions.

a.       Obligations. Publisher shall be solely responsible for: (a) the development, operation and maintenance of Publisher Websites; (b) all materials that appear in any Promotional Material; (c) accuracy and appropriateness of all materials appearing in the Promotional Materials; (d) ensuring the materials appearing in the Promotional Materials do not violate or infringe upon the rights of any third party; and (e) ensuring that all usage of the Promotional Materials conform to these Terms and Conditions.  Further, the Publisher shall comply with all Laws.

b.      Publisher Restrictions. Publisher shall not (a) purchase and/or use domain names that incorporate any portion or permutation of Company, the Company Website or any trade names or slogans; (b) purchase any search engine keywords that incorporate any portion or permutation of “CashNetUSA”, “NetCredit”, “Quick Quid”, “QuickQuid”, “QQ”, “Pounds to Pocket”, “Pounds 2 Pocket”, “P2P”, “On Stride Financial”, “On Stride” or keywords that outrank and/or outbid Company on any term relating to the foregoing; (c) identify the Publisher Websites as an “official site”; (d) create or design any Publisher Website or any other website that Publisher operates or controls, in a manner which resembles the Company Website or is designed in such a manner that may confuse a visitor to such Publisher Website into believing that Publisher is or is representing Company; (e) create, design or send any email or place any call which resembles a Company email or is designed in such a manner that may confuse the reader of such email or recipient of such call into believing that such email or  call was sent or placed by or on behalf of Company; (f) make any warranty or representation on the Publisher Websites or in Promotional Materials to any person that Company will engage or guarantee such customer eligibility for any Company Product or Service; or (g) change any Company Product or Service price and/or offer any additional discount or rebate or levy any fee on any Company Product or Service.

 

J.       Publisher Originated Visitor.  Publisher represents and warrants that to the best knowledge of Publisher, each Publisher Originated Visitor transferred to the Company Website, Telephone Number or call center by Publisher represents a person who is interested in one or more Company Products or Services.

 

K.    Publisher Site Monitoring.  Publisher shall promptly provide Company with the uniform resource locator (“URL”) of each page and/or document that includes any of the Licensed Materials.  Publisher acknowledges that from time to time Company may monitor such URLs to make sure each usage of the Promotional Material complies with these Terms and Conditions and all applicable Laws.  If such usage is not compliant in Company’s sole discretion, Company reserves the right to require Publisher to change or remove the Promotional Materials.  Publisher shall immediately make all changes to the Promotional Materials requested by Company.  If for any reason, Publisher refuses to comply with such request, Company shall (without limiting its other rights and remedies) have the right to terminate this relationship without further notice pursuant to Section 2(A).

 

L.     Indemnification.  

a.       Each party will indemnify, defend (if requested by the indemnified party) and hold harmless the other party and its respective parent, affiliate and subsidiary entities, and their respective shareholders, directors, officers, employees, agents, partners, representatives, successors and assigns, (collectively, the “Indemnitees”), from and against any judgment, action, claims, lawsuits, losses, fines, deficiencies, damages, liabilities, costs and expenses (including reasonable attorneys’ fees, expenses and court costs), which may be suffered, made or incurred by any of the Indemnitees arising out of: (a) any breach or alleged breach of any of the representations, warranties, covenants, or obligations in these Terms or Conditions, or (b) the performance of the Services. 

b.      Each indemnified party, in its sole discretion, reserves the right, but not the obligation, to control the defense of any such action with counsel of its own choosing and the other party will fully cooperate with the indemnified party in connection therewith.

c.       If the indemnifying party fails to reasonably defend any action related to an indemnity claim, then the indemnified party, in its sole discretion, reserves the right, but not the obligation, to control the defense of the action with counsel of its own choosing and each party shall fully cooperate with the other in connection therewith.  The expenses that the indemnified party incurs in defending such action shall be added to its claim for indemnification.

 

4.                  REPRESENTATIONS AND WARRANTIES.

A.    Publisher represents and warrants that: Publisher Websites and Promotional Materials are in compliance with all applicable Laws and do not contain or promote, nor link to another website that contains, libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content;

B.     Publisher agrees not to engage in any illegal activity, and act in accordance with all Laws;

C.     Publisher owns or has the legal right to use and distribute all content, copyrighted material, products, and services displayed on Publisher Websites; Publisher agrees to not use deceit when marketing Promotional Materials or presenting Promotional Materials to consumers; Publisher has the right, power, and authority to accept these Terms and Conditions and grant the rights specified herein;

D.    Publisher will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company that allows Company to measure ad performance and provide its service (“Site Data”);

E.     If instructed to do so by Company and/or if the relationship terminates, Publisher will immediately remove and discontinue the use of any Site Data;

F.      Publisher acknowledges that Company does not represent, warrant, or make any specific or implied promises as to customer eligibility for Company Products or Services;

G.    If Publisher is notified that fraudulent activities may be occurring on Publisher Websites, and Publisher does not take any actions to stop the fraudulent activities, then Publisher is responsible for all associated costs and legal fees resulting from these fraudulent activities;

H.    If any errors or undesirable results occur due to no fault of Company, Company shall not be responsible for losses and Publisher may not be compensated.

5.                  FRAUD.

 

A.    Company and LinkTrust actively monitor traffic for fraud.  If we detect fraud, your account will be made inactive pending further investigation.  If you fraudulently add leads or clicks or inflate leads or clicks by fraudulent traffic generation (as determined solely by Company, such as pre-population of forms or mechanisms not approved by Company), you will forfeit your entire payment and your account will be terminated.  Company reserves sole judgment in determining fraud, and you agree to this clause.

 

B.     It is the obligation of Publisher to prove to Company that it is not committing fraud.  Company will hold your payment in “Pending Status” until you have satisfactorily provided evidence that you are not defrauding the system.  We flag accounts that:

a.       have click-through rates that are much higher than industry averages and where solid justification is not evident;

b.      have only click programs generating clicks with no indication by site traffic that it can sustain the clicks reported;

c.       have shown fraudulent leads as determined by Company; and

d.      use fake redirects, automated software, and/or fraud to generate clicks or leads.

 

C.     The parties acknowledge that LinkTrust’s operation of the Site includes monitoring and counting click-through rates.  The parties agree to accept the LinkTrust click-through rates as accurate and complete, unless a party can provide evidence to the contrary (as determined solely by Company).  Company monitors the number of funded loans originating from Publisher placed Links and Telephone Numbers.  Publisher agrees that for payment under the applicable SOW or insertion order, the parties will use the numbers tallied by Company, and the numbers will be accepted as accurate and complete.

 

6.                  CONFIDENTIAL INFORMATION.

 

A.    For purposes of these Terms and Conditions, “Confidential Information” shall mean, and shall include, without limitation, any and all information, knowledge and intelligence of any type whatsoever, whether in oral, written or electronic form, relating in any manner to the party, or such party’s parent, subsidiaries or affiliate, possessing, owning and disclosing such information (“Disclosing Party”), including, but not limited to, trade secrets, proprietary information, marketing strategies, business strategies, legal analyses, financial information, insurance information, customer lists, customer information, policies, procedures, research, lists, methodologies, specifications, software, software code, computer systems, software and hardware architecture and specifications, customer information systems, point of sale systems, management information systems, software design and development plans and materials, computer information control and security plans and systems, intellectual property, contracts, business records, and know-how; provided, however, any information that is either (i) generally known by, or available to, the public, (ii) was available to the party receiving the information from the Disclosing Party (“Receiving Party”) from a source other than the Disclosing Party who was authorized to disclose such information, or (iii) is otherwise independently known to, or developed by, the Receiving Party without reference to the Disclosing Party’s Confidential Information, shall not be considered Confidential Information.  The existence of these Terms and Conditions shall also be deemed Confidential Information.

 

B.     Each Receiving Party recognizes and acknowledges that each Disclosing Party’s Confidential Information is the exclusive property of the Disclosing Party, is material, is confidential and greatly affects the goodwill and the business success of the Disclosing Party.  Accordingly, as a material inducement for each Party to enter into these Terms and Conditions, each party hereto hereby covenants and agrees that it will not now, or at any time in the future, directly or indirectly, divulge, reveal or communicate, either orally or in writing or in an electronic format, to any other person or to the public, any of the Disclosing Party’s Confidential Information or use any of the Disclosing Party’s Confidential Information for the Receiving Party’s benefit or for the benefit of others except: (i) with the prior written consent of the Disclosing Party (which consent may be withheld in the Disclosing Party’s sole discretion); or (ii) as required by law, rule, regulation, subpoena or court order (but only to the extent the Receiving Party (a) first sends written notice to the Disclosing Party specifying with particularity the circumstances underlying the need for disclosing such Confidential Information pursuant to such law, rule, regulation, subpoena or court order, and (b) gives the Disclosing Party a reasonable period of time following Disclosing Party’s receipt of such written notice to diligently contest in good faith any disclosure required by such law, rule, regulation, subpoena or court order).  Each Receiving Party further agrees that it shall not use the Confidential Information for any purpose whatsoever other than to satisfy its obligations under these Terms and Conditions. Neither these Terms and Conditions nor the disclosure of any Confidential Information by a Disclosing Party will be construed as granting to the Receiving Party any license or rights in any of Disclosing Party’s Confidential Information except as is expressly provided in these Terms and Conditions.  Notwithstanding the foregoing, each Receiving Party may disclose the Disclosing Party’s Confidential Information to the employees, attorneys, accountants, lenders, officers, directors or shareholders of such Receiving Party, but only to the extent such employees, attorneys, accountants, lenders, officers, directors or shareholders absolutely require such Confidential Information in order for the Receiving Party to satisfy its obligations under these Terms and Conditions; provided, however, the Receiving Party shall require any of its employees, attorneys, accountants, lenders, officers, directors and shareholders who receive the Disclosing Party’s Confidential Information to comply with these Terms and Conditions (or are bound by a confidentiality agreement with terms not less restrictive that this section) and the Receiving Party shall be liable for any breach of the terms of this section by its own employees, attorneys, accountants, lenders, officers, directors and shareholders as if the Receiving Party had breached the terms of this section itself.

 

C.     Notwithstanding anything herein to the contrary, upon the earlier to occur of (a) the expiration or termination of the relationship, or (b) upon written request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party or destroy all of Disclosing Party’s Confidential Information in Receiving Party’s possession.  All such Confidential Information shall be returned to the Disclosing Party or destroyed within fifteen (15) days following the Receiving Party’s receipt of a written request from the Disclosing Party. Furthermore, upon the request of the Disclosing Party, the Receiving Party shall execute a sworn affidavit certifying to the Disclosing Party that all of Disclosing Party’s Confidential Information has been returned to Disclosing Party or destroyed, as requested.

 

D.    The parties agree to use commercially reasonable efforts to safeguard such Confidential Information in the same manner in which it would safeguard its own Confidential Information. 

 

E.     In view of the irreparable harm and damage which would occur to a Disclosing Party as a result of a breach or a threatened breach by the Receiving Party under subsection 6(B) above, and in view of the lack of an adequate remedy at law to protect such Disclosing Party, each Disclosing Party shall have the right to receive, and each Receiving Party hereby consents to the issuance of, temporary and permanent injunctions enjoining the Receiving Party from any violation of subsection 6(B) above.  Each Receiving Party acknowledges that both temporary and permanent injunctions are appropriate remedies for such a breach or threatened breach.  The foregoing remedies shall be in addition to, and not in limitation of, any other rights or remedies to which a Disclosing Party is or may be entitled hereunder or at law or in equity, including, without limitation, the right to specific performance and the right to receive damages.

 

7.                  LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTY.

 

A.    In no event shall Company be liable for any damages of any kind arising from Publisher’s use of the Site or Promotional Materials, including but not limited to broken images, special, indirect, incidental, punitive and consequential damages, even if Company has been advised of the possibility of such damages.

 

B.     The information, content, and services on the Site are provided on an “as is” basis with no warranty.  The Site is operated by a third party, LinkTrust.  You use the Site at your own risk.  To the maximum extent permitted by law, Company disclaims all representations and warranties of any kind, express or implied, with respect to the operation of the Site, the information, service, and content included on the Site and provided by Company, including but not limited to implied warranties of merchantability and fitness for a particular purpose.  Company does not represent or warrant that the information on the Site or provided by Company is accurate, complete or current. 

 

8.                  ASSIGNMENT.

 

A.    Publisher shall not assign, novate, subcontract, delegate, otherwise deal with all or any of Publisher’s rights and obligations under these Terms and Conditions, or otherwise engage the services of any subcontractor to perform any obligation under these Terms and Conditions without the express prior written consent of Company, which Company may grant or withhold in its sole discretion.  Company may assign, novate, subcontract, delegate, otherwise deal with all or any of its rights or obligations under these Terms and Conditions without the express prior written consent of Publisher.

 

9.                  TERM AND TERMINATION.

 

A.  The term of these Terms and Conditions shall be continuous, unless and until either party properly terminates the relationship or the relationship is terminated pursuant to Section 2(A).  Either party may terminate the relationship by providing the other party with written notice of termination. The termination will be effective immediately.

 

B.  Upon termination of the relationship: (i) Company’s acceptance of additional referrals obtained through Publisher shall not constitute a continuation or renewal of the relationship or a waiver of such termination, (ii) Publisher shall be entitled only to those unpaid fees, if valid, earned by Publisher on or prior to the date of termination, (iii) Publisher shall in no event be entitled to fees with respect to any amount of valid referrals delivered after the date of termination, (iv) all rights and licenses of Publisher hereunder shall immediately terminate, (v) Publisher shall cease all uses of (a) the Licensed Materials and (b) any trade names, trademarks, service marks, logos and other designations of Company or the Program, (vi) Publisher shall remove all Licensed Materials from its Promotional Materials, and (v) Publisher shall terminate all print media ad placements that use Licensed Materials or contain a Telephone Number.  

 

10.              ADDITIONAL TERMS.

 

A.  The provisions of these Terms and Conditions are severable. If any provision of these Terms and Conditions, or the application thereof to any person or circumstance shall be deemed invalid or unenforceable under any applicable law, such invalidity or unenforceability shall not affect the other provisions of these Terms and Conditions that can be given effect.

 

B.  No delay or failure by Company in exercising any right under these Terms and Conditions, and no partial or single exercise of that right, shall constitute a waiver of that or any other right.

 

C.  The rights and remedies of Company are not mutually exclusive; that is, the exercise of one or more of the provisions hereof shall not preclude the exercise of any other provision hereof.

 

D. These Terms and Conditions shall be deemed a mutual agreement and shall not be construed and/or interpreted in favor or against either party on the basis of preparation of the Terms and Conditions.

 

E.   Company reserves the right to modify the terms and conditions of these Terms and Conditions in its sole discretion. If any modification is unacceptable to Publisher, Publisher’s sole recourse is to terminate the relationship and/or reject the new Terms and Conditions offered.  Publisher’s continued participation in the Program by accepting the newly offered Terms and Conditions constitutes Publisher’s binding acceptance to the change.

 

F.   Publisher acknowledges that monetary damages may not be sufficient for breaches of these Terms and Conditions and that Company shall be entitled, without waiving any other rights or remedies, to seek injunctive or equitable relief as may be deemed proper by a court of proper jurisdiction.

 

H.  Neither Company nor Publisher shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters, interruption in internet service or any other cause which is beyond reasonable control of the party.

 

I.       Any notice required or permitted by these Terms and Conditions to Company shall be in writing and shall be made by personal delivery, overnight express courier (such as Federal Express) or by pre-paid certified or registered mail, addressed to Company as follows:

 

NC FINANCIAL SOLUTIONS, LLC

c/o Enova International, Inc.

200 West Jackson Boulevard, Suite 2400

Chicago, IL 60606

Attn: Lisa Young

 

With a copy to:

Enova International, Inc.

200 West Jackson Boulevard, Suite 2400

Chicago, IL 60606

Attn: Legal Department

 

Or, notice may be delivered to such other address as may be given by Company to Publisher in writing from time to time.  Notice will be deemed to have been received upon delivery or upon rejection of delivery as evidenced by a signature by recipient or its authorized agent of delivery receipt.

 

J.       The Terms and Conditions and all SOWs or insertion orders constitute the entire understanding between the parties, and supersede all prior agreements and negotiations, whether oral or written.  There are no other agreements between the parties, except as set forth in these Terms and Conditions.  No supplement, modification, waiver, or termination of these Terms and Conditions shall be binding unless in writing and executed by the parties to these Terms and Conditions.   In the event of any conflict or inconsistency between the Terms and Conditions and the terms of any SOW or insertion order, these Terms and Conditions will govern and control in all respects. 

 

K.    As the exclusive means of resolving through adversarial dispute resolution any disputes arising out of these Terms and Conditions, a party may demand that any such dispute be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and each party hereby consents to any such disputes being so resolved. Judgment on the award rendered in any such arbitration may be entered in any court having jurisdiction. The arbitrator shall be mutually selected by the parties and the costs of the arbitrator shall be borne by the prevailing party.  All arbitration proceedings shall be held in Chicago, Illinois. 

 

L.     The Terms and Conditions shall be construed and governed by the laws of the state of Illinois, without regard to its law regarding conflicts of law.

 

I.    The parties hereby agree that clauses 1(A), 2, 3(A), 3(F), 3(G)(b), 3(H)(b), 3(H)(c), 3(I)(a), 3(I)(b), and 3(L), 6, 7, 9, and 10 survive the termination of these Terms and Conditions, as well as all other clauses that by their nature survive these Terms and Conditions.