Terms and Conditions
These Terms and Conditions (“Terms”), together with the terms set forth in any IO (as defined below), constitute a legally binding and enforceable agreement (“Agreement”) between (i) the person agreeing (and upon whose behalf the person agrees) to these Terms or any document referencing these Terms (“Company”); and (ii) Full Beaker, Inc., a Washington corporation (“Full Beaker”).
“Click” means a click by a Visitor from a Full Beaker website to a Company Website, which may result from listings placed on Full Beaker Websites or as otherwise agreed by the parties.
“Company Websites” means websites owned and operated by Company.
“Effective Date” means the date the IO is signed by the last party.
“Full Beaker Websites” means websites owned and operated by Full Beaker.
“Inquiry” means Leads and/or Clicks, as applicable.
“IO” means a written or online insertion order or similar document agreed to by the parties.
“Lead” means a response from a person who express interest in certain products/services by providing valid consumer information either on the Full Beaker Websites or the Company Websites.
“Websites” means Company Websites and Full Beaker Websites.
During the term of this Agreement, Full Beaker may deliver Inquiries as more specifically set forth in one or more IOs in accordance with this Agreement.
Any such Inquiries will be delivered in a manner mutually agreeable to both parties. The Inquiries delivered to Company shall not exceed the amount set forth in the IO (if any) without Company’s consent (email sufficing).
In the event that Full Beaker delivers Leads to Company (“FB Leads”), the following terms shall apply:
Full Beaker will deliver leads that meet the criteria set forth in the IO.
FB Leads that do not meet the agreed-upon criteria may be returned pursuant to Full Beaker’s return policy and, in the event that such leads are accepted for return, Full Beaker will provide a credit against Company’s monthly invoice. Full Beaker reserves the right to verify all returned FB Leads and adjust credits appropriately in its sole discretion.
Company is granted a permanent, non-exclusive, worldwide, royalty-free right and license to use the information contained in FB Leads; provided, that if a FB Lead is returned, Company has no license to use such FB Lead (and the data associated with such FB Lead) and is prohibited from storing, using or sharing such FB Lead and associated data.
Company shall not share FB Leads with any third party (whether for consideration or not), except for vendors with whom Company must share data in order to conduct its business.
Company acknowledges and understands that Full Beaker retains ownership rights of all marketing data collected from Full Beaker online marketing campaigns, including FB Leads. Company further acknowledges that, unless otherwise agreed in writing, FB Leads delivered to Company are provided on a non-exclusive basis and Full Beaker is free to provide FB Leads to other companies.
In the event that Full Beaker delivers Clicks, the following terms shall apply:
Payment may be per-click or per-lead, as more specifically described in the applicable IO.
In the event that payment is per-click, Full Beaker shall establish and maintain a reasonable system for tracking and reporting the amount of Clicks delivered pursuant to this Agreement. Full Beaker shall provide regular reporting to Company (but in no event less than once per week) that shows the number of Clicks delivered. Within five (5) business days following the end of each month during the Term, Full Beaker shall deliver to Company a report showing the number of Clicks delivered during the previous month, which shall be used for billing purposes.
In the event that payment is per-lead, Company shall establish and maintain a reasonable system for tracking and reporting the amount of Leads generated from Clicks pursuant to this Agreement. Company shall provide regular reporting to Full Beaker (but in no event less than once per week) that shows the number of Leads generated from the Clicks. Within five (5) business days following the end of each month during the Term, Company shall deliver to Full Beaker a report showing the number of Leads created during the previous month, which shall be used for billing purposes.
Company shall pay Full Beaker the amounts set forth in the IO(s) for Leads and/or Clicks. Each such payment shall be made within thirty (30) days after the end of the month in which the Leads and/or Clicks are delivered to Company. Payment shall be made in United States dollars.
Should Company fail to timely pay any amount due to Full Beaker, Full Beaker reserves the right to pause Inquiries until payment is received and/or apply a late payment fee equal to one and one-half percent (1.5%) of the amount past due, in addition to any other amount owing.
During the term of this Agreement and not more than once per year, Full Beaker may audit Company's records that relate to the calculation of Leads. Any such audit shall be done at Full Beaker's expense. If any such audit identifies under-billing in excess of 1.5%, Company shall reimburse Full Beaker for the cost of such audit. Any adjustments and/or payments that must be made as a result of any such audit shall be made within thirty (30) days from presentation of Full Beaker's findings to Company.
The term of this Agreement shall commence on the Effective Date and continue until cancelled by either party upon 24 hours advance written notice (email sufficing).
Upon termination of this Agreement, all rights and obligations of the parties under this Agreement shall be extinguished, except that (i) all accrued payment obligations hereunder shall survive such termination or expiration, and (ii) the rights and obligations of the parties under Sections 6-12 shall survive such termination or expiration.
7. Representations and Warranties.
Each party represents and warrants to the other party that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms; (iii) its execution of this Agreement by such party and performance of its obligations hereunder do not and will not infringe on any third party intellectual property rights nor violate any agreement to which it is a party or by which it is bound; and (iv) each party’s activities under this Agreement will conform to all applicable laws, rules and regulations. In addition, each party represents and warrants that it is in good standing and registered to do business in all states where it operates and holds any licenses necessary to conduct such business. Each party shall take reasonable measures to promptly address and resolve all complaints and inquiries made against it, whether from consumers or a regulatory agency. Further, each party shall cooperate with the other party in addressing any inquiries or actions brought against the other party by any regulatory body having authority over such party, including (without limitation) disclosing any documents or records requested by such regulatory body.
Each party agrees and covenants to indemnify and hold the other party (and its affiliates and their respective directors, officers, employees and agents) harmless from any and all claims, costs, damages, losses, expenses (including reasonable attorney’s fees), and liabilities of any kind, whatsoever, which may arise in any way out of a breach by such party of any covenant, representation or warranty made in this Agreement.
9. Limitation of Liability.
EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, AND EXCEPT FOR A BREACH OF A REPRESENTATION OR WARRANTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID BY COMPANY TO FULL BEAKER UNDER THIS AGREEMENT.
Each party (the "Receiving Party") undertakes to retain in confidence the terms of this Agreement and all other non-public information and know-how of the other party disclosed or acquired by the Receiving Party pursuant to or in connection with this Agreement which is either designated as proprietary and/or confidential or by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary and/or confidential ("Confidential Information"); provided that each party may disclose the terms and conditions of this Agreement to its legal and financial consultants in the ordinary course of its business, and to its employees who have a need to know the Confidential Information in order for that party to perform its obligations under this Agreement and who have been apprised of the confidential nature of the Confidential Information in advance. Each party will only use the other party's Confidential Information to perform obligations and exercise rights under this Agreement. Each party agrees to use commercially reasonable efforts to protect Confidential Information of the other party, and in any event, to take precautions at least as great as those taken to protect its own confidential information of a similar nature. The foregoing restrictions shall not apply to any information that: (a) was known by the Receiving Party prior to disclosure thereof by the other party; (b) was in or entered the public domain through no fault of the Receiving Party; (c) is disclosed to the Receiving Party by a third party legally entitled to make such disclosure without violation of any obligation of confidentiality; (d) is required to be disclosed by applicable laws or regulations (but in such event, only to the extent required to be disclosed); or (e) is independently developed by the Receiving Party without reference to any Confidential Information of the other party. Upon request of the other party, or in any event upon any termination of this Agreement, each party shall return to the other all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information of the other party. Each party acknowledges that breach of this provision by it would result in irreparable harm to the other party, for which money damages would be an insufficient remedy, and therefore that the other party shall be entitled to seek injunctive relief to enforce the provisions of this Section.
11. Dispute Resolution.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules (except as modified in this section), and judgment on the award rendered by the arbitrator may immediately be entered in a court of law in either (1) the State of Washington or (2) the State where the non-prevailing party has assets, and the judgment may be immediately executed upon.
Claims shall be heard by a single arbitrator. The arbitration shall be governed by the laws of the State of Washington. Each party will, upon written request of the other party, promptly provide the other with copies of all relevant documents; there shall be no other discovery allowed. The arbitration will be based on the electronic submission of documents and there shall be no in-person or oral hearing.
Time is of the essence for any arbitration under this agreement and arbitration hearings shall take place within 90 days of filing and awards rendered within 120 days after filing. Arbitrator shall agree to these limits prior to accepting appointment. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator shall not award consequential damages in any arbitration initiated under this section.
The prevailing party shall be entitled to an award of reasonable attorney fees and reimbursement of expenses actually incurred, which shall be included in the arbitration judgment. There shall be no appeal from the arbitration judgment.
Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount.
Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Limitation on Authority. Nothing in this Agreement shall be deemed to grant to either party any authority to make representations, warranties or commitments of any kind on behalf of the other party
No Other Relationship. Nothing herein will be deemed to create an agency relationship, nor the relationship of employer and employee between Company and Full Beaker. No joint venture, partnership, or similar relationship is created hereby.
No License. Nothing in this Agreement is intended to provide to either party any right, whatsoever, to use the other party's name, trademarks and/or logo.
Binding. This Agreement constitutes the entire agreement and understanding between the parties to this Agreement and supersedes all prior and contemporaneous negotiations and understandings between the parties whether oral or written, expressed or implied. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective heirs, legal representatives, successors and assigns of the parties hereto. Nothing herein, expressed or implied, confers any rights or remedies upon any party other than the parties to this Agreement and their respective successors, legal representatives and assigns.
Notices. All notices, requests, demands and other communications hereunder shall be in writing and will be deemed to have been duly given when emailed and receipt is acknowledged by the addressee, or delivered by over-night courier, or mailed, first class postage pre-paid to the address set forth in the IO. These addresses may be changed from time to time by prior written notice to the other party.
Headings. The headings contained in this Agreement are for reference only and will not affect in any way the meaning of or interpretation of this Agreement.
Invalid Provisions. Should any one or more of the provisions of this Agreement be held to be invalid, illegal or unenforceable under applicable law, then, so long as the intent of the parties is fulfilled, this Agreement shall be construed as if such invalid, illegal or unenforceable provision (or such portion thereof which must be removed to make the provision valid, legal and enforceable consistent with the intent of the parties) had never been contained herein and the remaining provisions shall be given effect to the maximum extent then permitted by law.
Choice of Law. This Agreement shall be construed, enforced and governed by the laws of the State of Washington and the parties shall only bring suit for any dispute arising out of this Agreement in a court of law in the State of Washington. No party shall make a motion to dismiss or transfer any case filed in accordance with this subsection on the basis of improper venue, personal jurisdiction, or of the convenience of any party or witness.
Assignment. Neither party may assign this Agreement absent the prior written consent of the other party. Notwithstanding the foregoing, either party has the right to assign this Agreement to any affiliate or acquirer of all or of substantially all of its equity securities, assets or business relating to the subject matter of this Agreement, or pursuant to any reorganization. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and assigns.
Waiver. No term or condition of this Agreement shall have been deemed to have been waived, nor shall there be an estoppel against the enforcement of this Agreement, except by written instrument of the party to be charged with such waiver or estoppel. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as any other than that specifically waived.
FULL BEAKER RESERVES THE RIGHT TO CHANGE ANY OF THE TERMS AND CONDITIONS IN THIS AGREEMENT AT ANY TIME BY POSTING UPDATED TERMS ON THE FULL BEAKER WEBSITE. CONTINUED USE OF INQUIRIES CONSTITUTES ACCEPTANCE OF THE REVISED TERMS AND CONDITIONS.