Media Response, Inc.


MASTER PUBLISHER AGREEMENT


This Agreement is entered into as of the date signed on the insertion order (IO) provided by Media Response Inc. and agreed upon by both parties. (The “Effective Date”) and is by and between Media Response Inc., a Florida corporation located at 2450 Hollywood Blvd. Suite 200B, Hollywood FL 33020 (“MEDIA RESPONSE”), and ____________for itself and on behalf of its subsidiaries (“Affiliate”).

R E C I T A L S


A. MEDIA RESPONSE has established a network of affiliates that purchase educational interest in the form of a “Lead” (as defined herein) containing customer information.


B. Affiliate operates at approved Website(s) and any other website owned or powered by Affiliate (collectively, the “Affiliate Site”), which Website aggregates Leads and provides educational related content designed to attract educational interest and educational intenders; and


C. MEDIA RESPONSE and Affiliate wish to establish a business relationship whereby MEDIA RESPONSE desires to purchase Leads from Affiliate upon the terms and conditions set forth in this Agreement.


NOW THEREFORE, in consideration of the agreements and the good and valuable consideration herein contained, the receipt and sufficiency of which is hereby acknowledged by the parties agree as follows:


1. Lead Program Description


a. Definitions. The following terms shall have the meaning set forth herein:

Unique User” shall mean an individual user who submits a Lead through the Affiliate Website (as defined herein) and who has not submitted any substantially similar Lead within the past ninety (90) days.



b. Affiliate shall deliver Leads to MEDIA RESPONSE campaigns.  All Leads must contain the User’s full name, street address, city, state, zip, email address and any additional filters set forth by advertiser. User must have opted in to receive information and the applicant must provide complete and accurate information on the educational application as approved by MEDIA RESPONSE to the user.


c. MEDIA RESPONSE shall have no obligation under this Agreement to accept or pay for Invalid or duplicate Leads.


2. MEDIA RESPONSE Lead Quality


a. The applicable web pages on the Affiliate Site (the “Affiliate Lead Pages”) shall include web pages which prompt a user to input information about themselves and the school in which they are interested.  MEDIA RESPONSE and Affiliate shall use reasonable efforts to identify and implement those fields that will yield the optimal balance between Lead volume and campaigns/schools offered by MEDIA RESPONSE.  Affiliate acknowledges that Lead quality is a constant priority for MEDIA RESPONSE, and Affiliate shall use reasonable efforts to identify and implement measures to ensure that it provides MEDIA RESPONSE with high quality Leads.  Unless otherwise agreed in writing, in order to qualify as a Valid Lead (defined below), Leads obtained by Affiliate shall comply with Section 4(a).  Lead validity requirements will vary from advertiser to advertiser and will be set forth on a case by case basis, per campaign.


b. Affiliate will provide Leads to MEDIA RESPONSE only where a user has requested information and has indicated an intention to receive information from a school within the timeframe set forth by the advertiser’s campaign instructions.  Affiliate agrees that Leads shall be generated solely through the following marketing activities subject to the limitations set forth herein and as otherwise imposed by law:


(i) Advertising in and on educational-related media and websites;

(ii) Call center education generated leads;

(iii) Email generated education leads.

c. Lead generation activities outside the areas specified in Section 2(b) shall require MEDIA RESPONSE’s prior written approval, which may be granted or withheld in MEDIA RESPONSE’s sole and absolute discretion. Affiliate shall not engage in any unacceptable marketing activities, as determined in MEDIA RESPONSE’s sole discretion, or fax solicitation.  Affiliate shall comply with all applicable state and federal advertising rules and regulations.


3. Changes, Applicable Laws, Ownership


a. Affiliate shall promptly notify MEDIA RESPONSE of any material changes in its promotional activities that could affect the volume and quality of the Leads generated.  Further, Affiliate acknowledges and agrees that any failure to notify MEDIA RESPONSE of material changes in promotional activities could result in Lead rejection and/or suspension or termination of this Agreement.  Any campaign launched without such approval shall be invalid and Affiliate’s links will be nullified and Affiliate shall not be entitled to compensation for any Leads generated there from.


b. If Affiliate uses email marketing as a method of generating Leads, Affiliate shall at all times follow nuisance, spam and other applicable laws, including but not limited to those set forth in Section 3.3 FTC Safeguard Rule and the Federal CAN SPAM legislation enacted on January 1, 2004, and any updates, changes and/or modifications to such Act (collectively “Usage Laws”).  MEDIA RESPONSE shall not be obligated to compensate Affiliate for any Leads generated in violation of pre-approval requirements, nuisance, spam and other Applicable Laws (as defined below).  Affiliate’s non-compliance with this Section is grounds for immediate termination of all agreements between Affiliate and MEDIA RESPONSE.  Affiliate shall not use or permit the use of spam, nuisance, unsolicited and/or intrusive email, to solicit, obtain, or acquire any Leads, and MEDIA RESPONSE shall not compensate Affiliate for any Leads obtained in such a manner, which shall be determined in MEDIA RESPONSE’s sole reasonable discretion.


c. Affiliate and MEDIA RESPONSE agree to maintain physical, electronic and procedural controls and safeguards to protect the Customer Information received from either party from unwarranted disclosure.  These controls include, but are not limited to, the maintenance of appropriate safeguards to restrict access to the Customer Information received from either party to employees, agents or service providers who need such information to carry out the purpose(s) for which the Customer Information was disclosed.  For purposes of this paragraph, “Customer Information” means any record containing non-public personal information as defined in 16 C.F.R. §313.3(n) (including, but not limited to, a user’s name, phone number, e-mail address and physical address) about the user, whether in paper, electronic or other form that is disclosed or made available to either party or its affiliates.  MEDIA RESPONSE will use industry standard best practices to protect the Customer Information. In addition, MEDIA RESPONSE will comply with the obligations set forth in Exhibit A hereto.  


d. Each party shall comply with all federal, state and local laws and regulations applicable to this Agreement and the respective party’s obligations hereunder, including without limitation all consumer protection laws, the federal Equal Credit Opportunity Act , Fair Credit Reporting Act and Fair Debt Collection Practices Act and each of their respective regulations (collectively, with Usage Laws, “Applicable Laws”)”).  Affiliate’s practices in taking Lead applications shall at all times comply with Applicable Laws, and all required disclosures and notices required to be given under Applicable Laws shall be given.  Affiliate will not pre-check any consumer permissions and authorizations. Affiliate shall obtain authorization from each consumer to submit a Lead application to the MEDIA RESPONSE campaigns.


Leads provided to MEDIA RESPONSE, in whole or in part, and any information contained in such Leads shall be the sole and exclusive property of MEDIA RESPONSE, who shall have the right to transfer, license, sell and in any manner use that information.  Affiliate shall not retain any ownership whatsoever and shall not retransmit, license, sell or otherwise transfer for compensation or free of charge any Lead or any part thereof to any person or entity.


4. Compensation and Payment Terms


a. For a Lead to be considered a “Valid Lead ” and compensable, all of the following must be true:  (i) the user submitted the Lead on his or her own behalf (or on behalf of his or her child or dependent); (ii) the Lead was from a Unique User; (iii) the Lead originated on an Affiliate Site or site powered by an Affiliate engine and was not generated through a co-registration site or path; (iv) the Lead was successfully delivered to and accepted by MEDIA RESPONSE; (v) the Lead originated from a user who came to the approved affiliate site via a click thru or by redirect or was passed to MEDIA RESPONSE as a form post lead; and (vi) the Lead meets the criteria in Sections 1 and 2.


b. MEDIA RESPONSE agrees to pay Affiliate the amount specified below per Valid Lead submitted and accepted by MEDIA RESPONSE. Valid Leads will be paid to Affiliate within forty five (45) days following the end of the month in which MEDIA RESPONSE shows payment is due.  This amount may be contingent on Affiliate meeting specific monthly volume requirements and shall be based upon MEDIA RESPONSE’s/advertiser’s reporting.  Lead payouts will be agreed upon and listed on an IO which references these terms. Each individual advertiser will have a unique payout per campaign.


c. MEDIA RESPONSE shall not be obligated to pay Affiliate for any Invalid Leads as determined in good faith by MEDIA RESPONSE after its internal investigation.  “Invalid Lead” shall mean a Lead that does not meet the “Valid Lead” requirements in this Section or any Lead that was retransmitted, licensed, sold or otherwise transferred for compensation or free of charge to any other third party in violation of this Agreement.


5. Term.  The term of this Agreement shall begin and end on the date listed on the accompanying IO and shall continue in full force and effect for the duration of said time, unless it is terminated earlier in accordance with the terms and conditions contained herein.  


6. Termination.  This Agreement may be terminated in writing by either party for any reason or no reason with thirty (30) days prior written notice to the other party.  Either party may terminate this Agreement at any time during the Term immediately by written notice to the other party upon the occurrence of breach of any material term of this Agreement and the breaching party fails to cure such breach within ten (10) business days after wrote demand from the non-breaching party to do so.


7. Non-Exclusivity.  During the Term of this Agreement Affiliate shall be MEDIA RESPONSE’s non-exclusive educational lead service provider, advertised, referred to and receiving leads through the Affiliate Site.  Any Lead that is sold to MEDIA RESPONSE will become the property of MEDIA RESPONSE and such information will not be shared with any other entity without the written consent of MEDIA RESPONSE. Affiliate shall not be limited by this Agreement with respect to its entering into similar arrangements with any other person or entity, including, but not limited to any arrangements with advertiser.



8. Responsibilities of Parties


a. Each party will be solely responsible for the development, operation, and maintenance of such party’s respective websites and for all materials that appear on such websites.  Each party will be solely responsible for the technical operation of such party’s website and all related equipment, as well as ensuring that materials posted on such party’s website do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, tradenames, privacy, or intellectual property rights) and are not defamatory or otherwise illegal and do not violate Applicable Laws.  Violation of or abdication of a party’s responsibilities under this Section will give the other party the right to terminate this Agreement immediately upon written notice.

 

b. Each party represents and warrants as follows:


  1. Each party is organized and validly existing under the laws of the state referenced in the first paragraph of this Agreement. Each party has full corporate power and authority to transact any and all business contemplated by this Agreement and possesses all requisite authority, power, and licenses, permits and franchises to conduct business wherever it conducts business and to execute, deliver and comply with its obligations under the terms of this Agreement. Each party has taken all necessary action to authorize its execution, delivery and performance of this Agreement.


  1. The execution and delivery of this Agreement and the performance of its obligations hereunder by each party will not (i) conflict with or violate (a) its Certificate of Incorporation or By-laws; or (b) provisions of any law, regulation, decree, demand or order to which it is subject; or (ii) conflict with or result in a breach of or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under any of the terms, conditions or provisions of any understanding, agreement or instrument to which it is a party or by which it is bound or any order or decree applicable to it or resulting in the creation or imposition of any lien on any of its assets or property.


  1. This Agreement, and all the obligations of each party hereunder, shall constitute the valid and binding obligations of each party, enforceable against each in accordance with the terms hereof, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting enforcement of creditors’ rights and by general equity principles (regardless of whether such enforcement is considered in a proceeding in equity or at law).



9. Relationship of Parties.  The relationship between MEDIA RESPONSE and Affiliate under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, broker, employee, servant, agent, or representative of the other for any purpose whatsoever.  No party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another party or to bind another in any matter or thing whatsoever.  Except as expressly granted in this Agreement, Affiliate shall have no rights of any kind in the images and/or trademarks or logos made available to Affiliate by MEDIA RESPONSE, any of MEDIA RESPONSE’s intellectual property rights or the MEDIA RESPONSE Site.  Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel, or otherwise, a license to any of MEDIA RESPONSE’s intellectual property or proprietary technology other than as stated in this Agreement.  MEDIA RESPONSE shall have no rights of any kind in any Affiliate images, logos, trademarks or other intellectual property.  Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppels, or otherwise, a license to any of Affiliate’s intellectual property or proprietary technology.  To the extent MEDIA RESPONSE provides Affiliate with any campaign related intellectual property, including, but not limited to logos, MEDIA RESPONSE represents and warrants it has the right to provide Affiliate with the license to use such content pursuant to this Agreement.


10. Confidentiality


a. The terms of this Agreement are confidential and each party agrees not to disclose such terms to any third party without the written consent of the other party to this Agreement, except: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body or as maybe required by law, after written notice of such required disclosure is provided to the other party; or (ii) disclosure in confidence to its legal counsel, accountants or other professional advisors, or to potential investors, merger partners or acquirers.


b. The parties acknowledge that each party  (the “Recipient”) will receive in connection with this Agreement confidential information relating to the other party’s (the “Disclosing Party”) business, including but not limited to, information regarding the Disclosing Party’s products, services or offerings; planned marketing or promotion of the Disclosing Party’s products, services or offerings; the Disclosing Party’s business strategies, policies or practices; the Disclosing Party’s inventions, patents and patent applications, discoveries, ideas, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, documentation, diagrams, flow charts, research, development, processes, procedures, “know-how,” trade secrets, any and all customer information, including without limitation, customer lists, customer names, addresses, property descriptions, credit information, and loan offer and approval information, and all other information related to customers, price lists and pricing policies; financial information, including budgets, forecasts, projections, operating results and financial statements; and information received from others that Disclosing Party is obligated to treat as confidential (collectively, “Confidential Information”). Each party agrees to protect and maintain the secrecy of the Disclosing Party’s Confidential Information by, among other things: (i) treating such information with at least the same standard of care and protection which such party accords its own confidential and proprietary information but in any event with no less than a reasonable degree of care; (ii) using care in the assignment of personnel who receive or have access to such information, and instructing and obtaining the prior written agreement of such personnel to take all reasonable precautions to prevent unauthorized use or disclosure thereof; and (iii) not using, disclosing or exploiting such information except as necessary to perform any services or obligations hereunder or as otherwise pre-authorized by the Disclosing Party in writing.


c. Confidential Information does not include any information that the Recipient can demonstrate:  (i) was in the public domain at the time it was received; (ii) enters the public domain through no fault of the Recipient; (iii) is independently developed by Recipient without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is disclosed as required by law (including disclosures necessary or appropriate in filings with the Securities and Exchange Commission or other governmental body).  In addition, Recipient may disclose the Disclosing Party’s Confidential Information to a legal, judicial or governmental entity, or as required by the rules or orders of a court or governmental entity, provided that, before such disclosure, Recipient shall give the Disclosing Party reasonable advance written notice of such so that the Disclosing Party can seek a protective order or the appropriate protection for the Confidential Information and the Recipient uses reasonable efforts to have such information treated as confidential and under seal.


d. Upon termination of this Agreement, and on written request of the Disclosing Party, the Recipient will promptly destroy, and provide satisfactory certification of such destruction, all tangible items containing the Disclosing Party’s Confidential Information.  

e. Each party acknowledges that all of the Disclosing Party’s Confidential Information is owned solely by the Disclosing Party (or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury to the Disclosing Party, the degree of which would be difficult to ascertain. Accordingly, notwithstanding Section16, each party agrees that the Disclosing Party will have the right to seek an immediate injunction enjoining any breach or alleged breach of this Section, wherever it deems appropriate, as well as the right to pursue any and all other rights and remedies available at law or in equity in the event of such a breach or alleged breach.


11. Limitation of Liability.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THIS AGREEMENT OR ANY LEAD PROCESSED AS A RESULT OF THE LEAD PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR USAGE OF TRADE).  IN ADDITION, MEDIA RESPONSE MAKES NO REPRESENTATION THAT THE OPERATION OF MEDIA RESPONSE’S SITE, THE SOFTWARE OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND MEDIA RESPONSE SHALL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.


EXCEPT IN THE EVENT OF A BREACH OF SECTIONS 10, 11, 13 AND A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR ANY CLAIMS OR DEMAND OF A SIMILAR NATURE OR KINDEVEN IF A PARTYHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES..  EXCEPT IN THE EVENT OF A BREACH OF SECTIONS 10, 11, 13 AND A PARTY’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR DAMAGES, SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT FOR THE TWELVE MONTH PERIOD PRIOR TO THE CLAIMS.


12. Fees.  Except as expressly provided herein, each party shall bear its own costs incurred in performing under this Agreement.


13. Indemnification.  


  1. By Affiliate.  Affiliate shall defend, indemnify and hold harmless MEDIA RESPONSE and each of its affiliates and third party suppliers and its and their respective officers, directors, employees and agents against and in respect of any and all loss, debt, liability, damage, obligation, claims, demand, judgment or settlement of any nature or kind, known or unknown, liquidated or unliquidated, including without limitation all reasonable costs and expenses incurred (collectively, “Damages”) arising out of or resulting from: (a)  its email practices and/or Lead data collection practices, or based upon any claims, action or proceeding by any third party alleging facts or circumstances which, if true, would constitute a material breach of Affiliate’s obligations hereunder.  Affiliate shall pay any Damages against or regarding MEDIA RESPONSE and/or its affiliates resulting from any such claims as a result of the Affiliate’s non-compliance with this Agreement.


  1. By MEDIA RESPONSE.  MEDIA RESPONSE shall defend, indemnify and hold harmless Affiliate and each of its affiliates and its respective officers, directors, employees and agents against and in respect of any and all Damages arising out of or resulting from a breach by MEDIA RESPONSE of any of its material obligation, representation or warranty.  MEDIA RESPONSE shall pay any Damages against or regarding Affiliate and/or its affiliates resulting from any such claims as a result of the MEDIA RESPONSE’s non-compliance with this Agreement.


14. Notices.  Any notice required to be given pursuant to this Agreement shall be in writing and mailed by certified or registered mail, return receipt requested or delivered by a national overnight express service, addressed as follows:


If to MEDIA RESPONSE:

Media Response, Inc.

2450 Hollywood Blvd.

Hollywood FL 33020

Attn:  Ellis Kahn


If to Affiliate: __________________

__________________

__________________

Attn:  


Either party may change the address to which notice or payment is to be sent by written notice to the other Party pursuant to the provisions of this paragraph.


15. Force Majeure.  Neither party shall be liable for any loss or delay resulting from a force majeure event, including acts of God, fire, natural disaster, labor stoppage, war or military hostilities, or inability of carriers to make scheduled deliveries, and any payment or delivery date shall be extended to the extent of any delay resulting from any force majeure event.


16. Governing Law; Venue.  This Agreement has been negotiated and prepared and shall be performed in the State of Florida, and the validity, construction and enforcement of, and the remedies under, this Agreement shall be governed in accordance with the laws of the State of  Florida.


EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIMS (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARTIES HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.  ANY PARTY HERETO MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS CONCLUSIVE EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY.


17.  Miscellaneous.  



a. No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.


b. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.


c. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.  Neither party may assign this Agreement, in whole or in part, without the other party’s written consent.  Notwithstanding the foregoing, MEDIA RESPONSE may assign this Agreement to any successor of MEDIA RESPONSE or any parent, affiliate, subsidiary, or other entity which is controlled by, controls or is under common control with MEDIA RESPONSE or in the event of a sale of MEDIA RESPONSE, whether through the sale of all or substantially all of its assets, merger, consolidation or other similar transaction; provided, however, that in such an event, MEDIA RESPONSE will provide Affiliate with notice of such change.


d. This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement.  It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement.  This Agreement shall take precedence over any other documents, which may be in conflict therewith.


e. In the event that either party shall breach the terms of this Agreement, the prevailing party shall be entitled to recover from the other party all reasonable costs and expenses incurred by the prevailing party in enforcing the provisions of this Agreement, including reasonable attorneys’ fees and cost of appeal.


f. This Agreement may be executed in any number of counterparts, and each such counterpart hereof shall be deemed to be an original instrument but all such counterparts together shall constitute but one agreement.


Intending to be bound, each of the parties hereto has caused this Agreement to be duly executed by their authorized representatives and delivered in duplicate as of the date first written above.