Terms and Conditions of Use Agreement
Permission is granted to temporarily download one copy of the materials (information) on MarketPad.com's web site for personal, non-commercial transitory viewing only. This is the grant of a license, not a transfer of title, and under this license you may not:
- modify or copy the materials;
- use the materials for any commercial purpose, or for any public display (commercial or non-commercial);
- attempt to decompile or reverse engineer any software contained on MarketPad.com's web site;
- remove any copyright or other proprietary notations from the materials; or
- transfer the materials to another person or "mirror" the materials on any other server.
The materials on MarketPad.com's web site are provided "as is". MarketPad.com makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, MarketPad.com does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet web site or otherwise relating to such materials or on any sites linked to this site.
In no event shall MarketPad.com or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption,) arising out of the use or inability to use the materials on MarketPad.com's Internet site, even if MarketPad.com or a MarketPad.com authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you. User agrees to indemnify and hold MarketPad.com, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees and costs, made by any third party due to or arising out of User's use of the Website, the violation of this agreement, or infringement by User, or other user of the Website using User's computer, of any intellectual property or any other right of any person or entity.
Revisions and Errata
The materials appearing on MarketPad.com's web site could include technical, typographical, or photographic errors. MarketPad.com does not warrant that any of the materials on its web site are accurate, complete, or current. MarketPad.com may make changes to the materials contained on its web site at any time without notice. We reserve the right, at any time, to modify, alter, or update the terms and conditions of the Agreement at any time and without prior notice. Modifications shall become effective immediately upon being posted at the Website. Your continued use of the classified and related services after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. You must review this agreement on a regular basis to keep yourself apprised of any changes. MarketPad.com does not, however, make any commitment to update the materials.
All registered MarketPad.com users, including business and personal accounts, may be contacted via email address provided upon registration. These contacts may include, but are not limited to: promotional offers, updates, new features, additions, and any other informative content regarding MarketPad.com and its registered members in order to increase awareness.
MarketPad.com has not reviewed all of the sites linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by MarketPad.com of the site. Use of any such linked web site is at the user's own risk. MarketPad.com may include links to other sites on the Internet that are owned and operated by online merchants and other third parties. You acknowledge that we are not responsible for the availability of, or the content located on or through, any third-party site.
Any claim relating to MarketPad.com's web site shall be governed by the laws of the State of Idaho without regard to its conflict of law provisions. User assumes all knowledge of applicable law and is responsible for compliance with any such laws. User may not use the Website in any way that violates applicable state, federal, or international laws, regulations or other government requirements. User further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation.
You agree not to post, message, email, or in any other way make available Content:
- that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another's privacy, or is harmful to minors in any way;
- that is pornographic, sexual in nature, or depicts a human being engaged in actual sexual conduct. MarketPad.com has a “No Nudity” rule and any violations of that rule will result in immediate expulsion from MarketPad.com. MarketPad is a family-friendly site.
- that harasses, degrades, annoys, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- that violates the Fair Housing Act Per section 3604(c) in any way by stating, in any notice or ad for the sale or rental of any dwelling, a discriminatory preference based on race, color, national origin, religion, sex, familial status or handicap.
- that violates federal, state, or local equal employment opportunity laws, stating in any advertisement for employment a preference or requirement based on religion, race, color, sex, age, national origin, or disability.
- that includes personal, financial or identifying information about another person without that person's prior, explicit consent;
- that is knowingly false, deceptive, deceitful, or misleading.
- that infringes any patent, trademark, copyright, or other proprietary rights of any persons or organization, or Content that you do not have a right to use or make available.
- that constitutes or information or content that otherwise would be considered “spam”. MarketPad.com has a strict NO SPAMMING policy which we will enforce immediately upon violation.
- that constitutes or contains any form of advertising or solicitation if: posted in areas of the MarketPad.com sites which are not designed for such purposes; or emailed to MarketPad.com users who have chosen not to receive communication from other users. We take our Stop Spam seriously and any infraction will result in expulsion from MarketPad.com immediately.
- that includes ads for escort services, or individuals offering escort services, or that solicits or encourages activity that is, or could be viewed or construed to be prostitition or sexual in nature.
- that misuses MarketPad.com's “report ad”, "flagging system" or other monitoring systems without each flag being manually entered by the person that initiates the flag, or use the flagging tool to remove ads of competitors. Violation of these rules will result in expulsion from MarketPad.com.
- that is considered by MarketPad to be "over-posting", either by what we consider to be too many duplicate ads in too many areas, or by duplicating the same ad too frequently in any area. The definition of "over-posting" is at MarketPad's sole discretion.
Images and files uploaded to MarketPad.com
The following may not be uploaded, or displayed under any circumstances on MarketPad.com:
- Pornographic files. This includes, but is not limited to, files depicting genitalia, nudity, or sexual situations.
- Images of people not wearing socially acceptable clothing for public places. (People must be wearing clothing socially acceptable to wear in a public place.) Modeled undergarments & partial nudity is not acceptable for our family friendly atmosphere.
- Files that are illegal and/or are in violation of any United States laws.
- Files that infringe on the copyrights of any entity excluding the user.
- Non-image or non-video files. This includes archived non-image files.
- Files intending to harass or spam, or promote anything for commercial profit.
Any trade-specific state or federal advertising requirements are the full responsibility of the user and must be related to MarketPad.com within 24 hours of payment for affiliate banner. User agrees to make MarketPad.com aware of any state or federally mandated inclusions in their advertising (ie Fair Housing logo on all Real Estate related advertising). Failure to comply is the sole responsibility of the user and MarketPad.com accepts no responsibility for advertising guidelines of particular industries not being adhered to.
If user acts as an independent contractor or consultant, it is user’s responsibility to determine appropriate use of affiliate or consultant’s website content including images and text. By supplying MarketPad.com with web links to additional material and content, user acknowledges MarketPad.com may make use of logos and images and user takes full responsibility for any infringement of copyrighted images contained in websites supplied by user to MarketPad.com.
Goods and Services Offered
The following policies refer to paid advertising (also known as Power Pages or banner ads) on this site.
DELIVERY OF (PAID) GOODS AND SERVICES
Strictly speaking, no "wares" or "goods" are provided through this site, only the service of text and/or image advertising via online advertising. Ads placed on MarketPad.com are delivered immediately upon verification of placement, payment and administrative approval if applicable. Delivery is at the point of sale.
REFUNDS, RETURNS, EXCHANGES
All sales are final. Should you decide to cancel your ad on MarketPad.com, your account is NOT credited for unused funds. For example, if you purchase an ad to appear for one year on this site and cancel the ad after just one month, there will be no balance to refund. The only option available to you is to resume your billboard or banner ad. Under no circumstance are refunds provided for any portion of your order, even immediately following the completion of your order. Finally, at no time shall a change in MarketPad.com's traffic level, usage level, types of users, traffic or page count, constitute grounds for a refund of advertising fees in any portion, nor shall these conditions be basis for complaint or failure to receive your desired result. We cannot guarantee any result.
Firearms Section - Regarding the sale or transfer of Firearms on MarketPad.com
A Federal Firearm License (“FFL”) is a license that allows companies and individuals to engage in the sale of firearms. Holding a Federal Firearm License to engage in certain such activities has been a legal requirement within the United States since the enactment of the Gun Control Act of 1968 (“GCA”).
It is important to know that MarketPad.com does not condone nor promote firearm or ammo sales by non-FFL individuals. MarketPad.com does allow non-FFL licensed individuals to list their firearms for sale on our classifieds for free, but we insist that you conduct the sale of your firearms at a licensed firearms dealership that can assist you with the legalities that vary in each state. Please do the research and follow the law when buying or selling firearms.
- Sale of transfer of firearm and related items limited to users 18 years of age or older.
- User understands that MarketPad is not and does not become involved in transactions between parties and does not certify, investigate, or in any way guarantee the legal capacity of any party to transact on this site or in any way.
- User is responsible for following and obeying all applicable enforcement mechanisms, including, but not limited to federal, state, municipal, and tribal statutes, laws, rules, regulations, ordinances, and judicial decisions, including compliance with all applicable licensing requirements.
- User will not use MarketPad.com for any illegal purpose.
- If user is at all unsure about firearm sales or transfers of any kind, user will contact the Bureau of Alcohol, Tobacco, Firearms, and Explosive at 1-800-ATF-GUNS and visit the ATF website at http://www.atf.gov.
- User takes full responsibility for user’s actions whilst using MarketPad.com. User also takes full responsibility for any and all of my actions related to, or resulting from, use of MarketPad.com. Further, user is solely responsible for any and all consequences of such actions.
- User indemnifies and will hold harmless MarketPad and all of its owners, directors, officers, employees, and agents for any and all loss, harm, damage, costs, liability, and expense caused to them, whether intentionally or unintentionally, by user’s use of MarketPad.com, including but not limited to direct or indirect results of violations of any and all applicable laws.
- Those convicted of felonies and certain misdemeanors except where state law reinstates rights, or removes disability.
- Fugitives from justice
- Unlawful users of certain depressant, narcotic, or stimulant drugs
- Those adjudicated as mental defectives or incompetents or those committed to any mental institution and currently containing a dangerous mental illness.
- Non-US citizens, unless permanently immigrating into the U.S. or in possession of a hunting license legally issued in the U.S.
- Illegal Aliens
- Those who have renounced U.S. citizenship
- Minors defined as under the age of eighteen for long guns and the age of twenty-one for handguns, with the exception of Vermont, eligible at age sixteen.
- Persons convicted in any court of a misdemeanor crime of domestic violence (an addition)
- Persons under indictment for a crime punishable by imprisonment for more than one year are ineligible to receive, transport, or ship any firearm or ammunition
Acquiring from dealers
Provided that federal law and the laws of both the dealer's and purchaser's states and localities are complied with:
- An individual 21 years of age or older may acquire a handgun from a dealer federally licensed to sell firearms in the individual's state of residence.
- An individual 18 years of age or older may purchase a rifle or shotgun from a federally licensed dealer in any state. However, the applicant may not purchase a pistol gripped long gun that does not have a shoulder stock until he or she is 21 years of age.
- It shall be unlawful for any licensed importer, licensed manufacturer, or licensed dealer to sell, deliver, or transfer a firearm unless the federal firearms licensee receives notice of approval from a prescribed source approving the transfer.
- Sale of a firearm by a federally licensed dealer must be documented by a federal form 4473, which identifies and includes other information about the purchaser, and records the make, model, and serial number of the firearm. Sales to an individual of multiple handguns within a five-day period require dealer notification to the ATF. Violations of dealer record keeping requirements are punishable by a penalty of up to $1000 and one year's imprisonment.
- An individual holding a Curio and Relics License (officially a Type 03 Federal Firearms License (FFL); also called a C&R) may directly purchase firearms that are 50 or more years old from anyone AND any firearm officially recognized by the ATF as a Curio and Relic (C&R).
Sales between individuals
In a private transaction, federal law prohibits the transfer or the sale of a handgun or ammunition, for use only in handguns, to individuals under 18 years of age. There is no federal law concerning minimum age for the transfer or sale of a firearm that is not defined as a handgun, such as rifles, semiautomatic rifles, short-barreled rifles, shotguns, short-barreled shotgun, etc., for transactions that don't involve federal firearms licensees.
An individual who does not possess a federal firearms license may not sell a modern firearm to a resident of another state without first transferring the firearm to a dealer in the purchaser's state. Firearms received by bequest or intestate succession are exempt from those sections of the law which forbid the transfer, sale, delivery or transportation of firearms into a state other than the transferor's state of residence. Likewise, antique firearms are exempt from these sections of the law in most states. (Antique firearms are defined as those manufactured pre-1899 by US federal law, or modern replicas thereof that do not use cartridges. State law definitions on antique firearms vary considerably from state to state.)
MarketPad suggests all buyers and sellers of firearms study and be aware of the laws regarding sale, transfer and use of firearms including the reading of the Federal Firearms Regulations Reference Guide available by clicking here.
Terms and Conditions and Policies
MarketPad Network Strategist / Independent Contract Agent (IC Agent)
MPad NETWORK STRATEGIST INDEPENDENT CONTRACTOR AGENT (IC Agent)
POLICIES AND PROCEDURES
This POLICIES AND PROCEDURES was last updated: 8.18.2015
This POLICIES AND PROCEDURES is effective as of: 8.18.2015
1. An IC Agent is an independent contractor and does not have a franchise, distributorship or other exclusive right to sell arrangement with MPad. MPad reserves the right to accept or reject any IC Agent Agreement in its sole discretion. An IC Agent is not an employee for federal tax purposes or any other purposes. An IC Agent is self-employed and is neither a partner, nor involved in a joint venture with MPad. An IC Agent will be responsible for all costs or liabilities incurred by the IC Agent in the sale and/or distribution of all MPad products/services. The IC Agent shall not enter into any agreements or make any purchases in the name of, or on behalf of, MPad.
2. An IC Agent at his/her own expense (if any) shall be responsible for the filing of any and all reports required by local law or public authority with respect to the sale of any products/services marketed by MPad and shall abide by any and all federal, state, county, and municipal laws, rules, regulations, and ordinances with respect to all sales. An IC Agent is responsible for providing MPad his/her Social Security number or Federal Tax Identification number for tax reporting purposes.
3. An IC Agent does not have the authority to waive, change, or modify MPad Services in any way. Furthermore, no modification of any service is binding upon MPad unless authorized in writing at the corporate offices of MPad by an authorized officer of MPad. Regarding advertising: (a) Only advertising and promotional material that is pre-printed, pre-approved, and properly licensed by MPad may be purchased or used in the promotion or sale of MPad products/services. An IC Agent agrees to pay for all supplies and marketing materials needed. (b) An IC Agent may not contact prospects by using auto dialers, unsolicited telemarketing, and unsolicited advertisements to fax machines and/or any other method prohibited by applicable federal or state law. In addition, an IC Agent initiating the transmission of unsolicited commercial electronic mail (spam), agrees to comply with all MPad policies regarding such advertising, as well as to applicable state and federal laws governing such transmissions.( c) Any IC Agent sponsored website shall comply with these policies and any other policies of MPad relating to IC Agent websites.
5. There are no territory exclusives. Any IC Agent may sell products/services in any state in which MPad is authorized to do business, except in those states where a license or appointment is required unless the IC Agent meets those requirements. However, an IC Agent may recruit other IC Agents in any state in which MPad is authorized to do business, provided the prospective IC Agent is properly licensed in that State if so required for the sale of products/services.
6. The IC Agent and the IC Agent's spouse, or similar relationship, will normally be regarded as one IC Agent. However, a spouse or similar relationship may complete a separate Agreement provided the Agreement is sponsored by the same person or entity. Persons must be 18 years of age or older to execute an IC Agent Agreement.
7. An IC Agent shall not disclose to any person other than MPad any non-public information concerning IC Agents or MPad.
8. In the event of the death of an IC Agent who is a party to this agreement solely in his/her individual name, all commissions due the IC Agent will be paid according to his/her last will and testament as admitted to probate or, if there is no will or other instrument providing otherwise, the rights of the IC Agent under this agreement shall be deemed to be owned (i) if the IC Agent has a spouse, as joint tenants with rights of survivorship with the spouse; or (ii) if the IC Agent does not have a spouse, as may be provided by the applicable law of descent and distribution. If the IC Agent's spouse succeeds to the business and has been actively participating in the business at the time of death, the spouse will have the option to continue in the same role as the deceased IC Agent. In any case covered by this paragraph 8, any outstanding debit balance of the deceased IC Agent at the time of death will be charged back against earned commissions, including renewals.
MPad reserves the right to change commission advance rates, adjust advances for Customer cancellations, pay commissions on an as-earned basis or to place commissions on hold in its sole discretion. No advance commissions or sums will be advanced to the IC Agent.
10. Any and all IC Agent accounts, including joint accounts, shall be considered as one account for the purpose of charge backs against debit balances.
11. Commissions will be considered payable 30 days from date of receipt of final payment by MPad from a Customer. A Final payment by a Customer shall be when payment in immediately available funds is received by MPad or if no Customer's credit or debit charge is refused at the time of the charge or any time later No Commissions will be paid to IC Agent unless and until commissions payable exceed $40.00 (U.S.). Subject to the requirement that cumulative commissions payable exceed $40.00 (U.S.) in a three month calendar period, all commissions earned and considered payable by the last day of the month will be paid by the 20th of the following month. No interest will be deemed earned or payable on commissions payable or commissions. So long as the IC Agent Agreement is in effect, an IC Agent will continue to receive commissions on a product/service line only so long as he/she produces at least $40 US Dollars in Earned Commissions per 3 month period in NEW sales in MPad Services. Due to processing fees, No earned commission check will be sent out for any value under $40 to any IC Agent. Held over commissions, due to not meeting the minimum $40 limit will be pushed to the next months pay period until said minimum of $40 or more is reached by the IC Agent. Only one commission is payable per IC Agent per Customer for new Customers of MPad; and, only one commission is payable annually for each renewal by an existing Customer of MPad.
12. No MPad services may be sold or offered in combination with any other product or service without prior written approval from an authorized officer of MPad. Ao IC Agent may sell or offer to sell any internet advertising service plan or product, other than MPad Services without prior approval from an authorized officer of MPad.
13. An IC Agent may not proselytize, recruit or solicit in any manner any IC Agent into any other company or organization during the term of the IC Agent Agreement and for 3 years after the date of any termination hereof.
14. The failure of MPad to insist upon strict compliance with any of the Policies and Procedures herein shall not be deemed to be a continuous waiver in the event of any future breach or waiver of the Policies and Procedures. Io the event of any conflict or inconsistency between these Policies and Procedures and any other marketing materials of MPad, these Policies and Procedures shall control.
15. Io the event that a provision of the IC Agent Agreement or these Policies and Procedures is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the balance of the Agreement and Policies and Procedures will remain in full force and effect.
16. The IC Agent Agreement and Policies and Procedures will be governed by and construed in accordance with the laws of the State of Idaho. The IC Agent Agreement and Policies and Procedures constitute the entire agreement between the IC Agent and MPad and no amendment may be made, either written or oral, without the signature of an authorized officer of MPad , provided that these Policies and Procedures may be amended from time to time by MPad by publication in a means reasonably available to IC Agents generally, including electronically or by publication in periodic communications to IC Agents or on the MPad website. All disputes and claims relating to MPad , the IC Agent Agreement, these Policies and Procedures and any other MPad policies, products and services, the rights and obligations of an IC Agent and MPad, or any other claims or causes of action between the IC Agent or MPad or any of its officers, directors, employees or affiliates, whether in tort or contract, shall be settled totally and finally by arbitration in Coeur d'Alene, Idaho, in accordance with the J.A.M.S/ENDISPUTE Arbitration Rules and Procedures, as amended by this Agreement. IC Agent and MPad agree the prevailing party on any action to enforce rights hereunder shall be entitled, in addition to any court awarded damages, their costs and reasonable attorney's fees, whether at arbitration, or on appeal. The parties agree that this provision and the Arbitrator's authority to grant relief are subject to the United States Arbitration Act, 9 U.S.C. 1- 16 et seq. ("USAA") and the provisions of this Agreement. The parties agree that the arbitrator have no power or authority to make awards or issue orders of any kind except as expressly permitted by this Agreement, and in no event does the arbitrator have the authority to make any award that provides for punitive or exemplary damages. The award may be confirmed and enforced in any court of competent jurisdiction. All post-award proceedings will be governed by the USAA.. If any IC Agent files a claim or counterclaim against MPad or any of its officers, directors, employees or affiliates in any such arbitration, an IC Agent shall do so only on an individual basis and not with any other IC Agent or as a part of a class action. The IC Agent consents to the jurisdiction and venue of such arbitration and such courts.
17. IC Agent shall indemnify and hold harmless MPad, its affiliates, employees, officers and directors from and against any and all claims, actions, suits, proceedings, judgments, damages, liabilities, costs and expenses, including reasonable attorney's fees and allocable cost of in-house counsel, arising directly or indirectly from breach of this Agreement, negligent acts or omissions, or willful misconduct of IC Agent (including all of its IC Agents, affiliates, whether or not approved). IC Agent shall also indemnify MPad against all liability and loss in connection with, and shall assume full responsibility for, payment and reporting of all federal, state and local taxes or contributions imposed or required under federal or state unemployment insurance, social security and/or income tax while engaged in performance or services under this Agreement. MPad shall give IC Agent prompt notice of any matter for which it has an indemnification obligation. As between the parties, MPad will control the defense of such action and settlement negotiations.
a. Notwithstanding the above or other provisions of this Section 17, IC Agent agrees to defend, indemnify and hold harmless, MPad and its directors, officers, employees and IC Agents from and against any claim or action whatsoever arising from (i) operation of the IC Agent's Online Web-Site; or (ii) the use or representations by IC Agent and/or customers and/or any third party authorized by IC Agent to transmit any message or other material which may be libelous or which constitutes an infringement of any copyright or trademark or third party proprietary right, or which violates any provision of any applicable statute or regulation of a Federal, state or local government, or which constitutes false and/or misleading representations or advertising claims.
b. IC Agent shall defend, indemnify and hold harmless MPad and its directors, officers, employees and IC Agents, from any and all claim, liabilities, damages or expenses (including allocated costs of in-house counsel and other legal fees and costs) arising from or claimed to have arisen from any fraudulent activity by IC Agent or for any breaches of security on any online website ofIC Agent.
c. IC Agent shall defend, indemnify and hold harmless MPad and its directors, officers, employees and IC Agents, from any and all claims, liabilities, damages or expenses (including allocated costs of inhouse counsel and other legal fees and costs) arising from or claimed to have arisen from the payment or nonpayment of any sums to IC Agent or the IC Agent or affiliates of IC Agent or any other person or entity with respect to MPad Services, and IC Agent shall receive and respond to all inquiries related thereto.
d. IC Agent will immediately notify MPad in writing of the commencement or threatened commencement of any action, suit or proceeding, and of the issuance or threatened issuance of any order, writ, injunction, award or decree of any court, agency or other governmental instrumentality, involving IC Agent's activities under this Agreement or which may affect IC Agent's ability to perform its obligations hereunder.
SALES AGENCY AGREEMENT
For MarketPad Network Strategist / Independent Contract Agent (IC Agent)
AGREEMENT made by and between MarketPad.com, Inc., an Idaho Corporation ("MPad"), with offices at 296 W. Sunset Avenue, Suite 11 Coeur d’Alene Idaho 83815.
1. Purpose The purpose of this agreement is to outline the terms under which the IC Agent will earn Transaction Fees via Mpad business customers selling Products, Discount DEALS/Coupons, Future Gift Certificates and other Advertising and marketing for MPad's website ("MPad Services") located on the Worldwide web at http://www.MarketPad.com.
2. Confidential Information. The following information is automatically deemed confidential and proprietary with need of any further legend or notice: (i) all Customer account and MPad Services record information of a MPad Customer, (ii) all commission-related information, and (iii) all MPad information to which IC Agent obtains access through a nonpublic Internet or other electronic or digital information source.
3. Independent Contractor Relationship Unless otherwise amended within this agreement, the IC Agent will be classified as a separate legal and business entity from MPad. All activities to be performed as IC Agent will be as an independent business and for purposes related to tax classification. Any monies generated from such activity shall be reported as Miscellaneous Income. Any stated or implied duty or requirement that violates this status is considered null and void. IC Agent shall be solely responsible for any reporting disclosure and payments, required by any federal, state and local regulations, including, but not limited to, unemployment insurance, workman's compensation, insurance, social security, income tax laws, sales taxes, use taxes, and any business and occupation taxes. IC Agent shall identify itself as an independent business. Unless specifically authorized in writing, neither MPad nor IC Agent shall make any express or implied agreements, guarantees or representations, or incur any debt, in the name of or on behalf of the other.
4. Duties of the IC Agent, the IC Agent will solicit and sell MPad Services that MPad approves, at its discretion and using methods that are reasonably judged as ethical and honest. IC Agent shall give prompt, courteous and efficient service to the public and all business dealings with members of the public will be governed by the highest standards of honesty, integrity and fair dealing. For the term of this Agreement and five (5) years thereafter, IC Agent will do nothing, which would tend to discredit, dishonor, reflect adversely upon or in any manner injure the reputation of or disparage MPad, its officers, directors, employees, affiliates, IC Agents or MPad customers.
4.1. Activities of IC Agent. IC Agent may set its own schedule for sales activity and the location or locations from which it conducts this activity. All costs relating to the IC Agent's sales efforts including, but not limited to, telephone, internet, transportation and office expense are those of IC Agent.
4.2 Sales Aid and Training MPad will provide (at a reasonable cost) IC Agent with an initial sales kit that includes a program description, sales literature, sales aids, and order forms to be used by IC Agent in its activities as provided by this Agreement. IC Agent shall use MPad approved marketing materials (including telemarketing scripts) and order forms only. Where such materials and forms are adapted for use online, IC Agent shall obtain MPad approval for the materials and forms as adapted.
5. Duties of MPad. MPad will supply the Internet website known as "davesbillboard.com" and such support necessary for the website.
5.1. Billing Related Support MPad will invoice and/or collect from all customers and compensate the IC Agent for accounts sold.
5.2. Billing and Collection MPad shall be responsible for the generation of all invoices to its customers, as well as collection of all accounts receivable. MPad shall have the right, in its sole discretion, to reject any potential customer order for lack of credit worthiness or for any other reason whatsoever or to discontinue service for non-payment.
6. Account Establishment, the IC Agent may establish new accounts via MPad's New Account Order Form, via telephone, or via Web-based ordering to MPad. MPad shall provide all such forms to the IC Agent. Any orders received via any other means are subject to forfeiture.
6.1. Account Tracking MPad will assign a unique ID Code to the IC Agent that must be referred to during the Account Establishment process. It is the IC Agent's sole responsibility to inform MPad of all new signups submitted. MPad will make a reasonable effort to ensure proper tracking on behalf of the IC Agent, including periodic tracking reports if requested, but disclaims any continuing obligation to do so.
7. Payment of Commissions
7.1. Order Documentation After receipt by MPad of (1) an original Customer's service application and agreement signed by a proposed Customer (including authorization to check a proposed Customer's credit), the proposed Customer's license and/or corporate letter of authorization (as applicable) with documentation of IC Agent's referral (collectively, these elements are referred to here as the "Order Documentation"), and (ii) acceptance of an Order by MPad, MPad shall pay the IC Agent a commission for a MPad Customer of MPad Services as set forth in Appendix A
7 .2 Date Payable Subject to the provisions of this section 7 .2, Commissions will be considered payable 30 days from date of receipt of payment by MPad from Customer. No Commissions will be paid to IC Agent unless and until commissions payable exceed $40.00 (U.S.). Subject to the requirement that cumulative commissions payable exceed $40.00 (U.S.) in a three month calendar period, all commissions earned and considered payable by the last day of the month will be paid by the 20th of the following month. No interest will be deemed earned or payable on commissions payable or commissions.
7.3 Calculation of Commissions Each Commission Report and commission check will be calculated for business activity from the first to the last day of the month. Subject to section 7.2, Checks will be issued by the 20th (or, if on a non-business day, the next closest day) of the next month. Only one commission is payable for a Customer.
7 .4. Customer Non-Payment If Customers are billed and do not pay, no commissions will be paid to IC Agent. In the event that a Customer chooses to pay by credit card and for any reason the charge is refused at the time of the charge or any time later, no commissions will be paid on the sale to IC Agent or deducted from any future commissions.
7.5 Account Deactivation. Any commission paid by MPad to IC Agent shall be refunded if the Customer Account on which the commission is paid is deactivated within the first 180 days, or if MPad determines in its sole discretion that the Customer Account was obtained as a result of fraud, misrepresentation, misleading information, or other material departure from MPad's stated policies, practices or marketing positions as they may change from time to time, including but not limited to those relating to Online Customer Orders. Any credit issued to a Customer Account to resolve any issue caused by IC Agent or its representatives making any misleading, improper or inaccurate representations may be set off against any commission amounts owed to IC Agent under this Agreement. It is agreed by IC Agent that any commission payments due IC Agent may be retained by MPad to offset any debts owed to MPad by IC Agent. In the event that IC Agent files any bankruptcy proceeding or has such a proceeding filed against it, IC Agent specifically agrees that MPad's right to offset as described herein shall continue unabated.
7.6 IC Agent Liability. IC Agent is liable for any breach of this Agreement. MPad is not liable to pay commissions under this Agreement or otherwise for revenue generated by any non-individual not approved by MPad. IC Agent has no claim against MPad for commissions, salaries or other items of expense.
7.7 Preexisting Customer. Unless otherwise agreed in writing by MPad, no commissions or other compensation will be paid for usage derived from any person or entity that was an existing MPad Customer at the time MPad received a Customer's Order Documentation submission or during the ninety (90) days preceding the Customer's Order.
8. Price Changes MPad shall have the right to modify its advertising rates as necessary to maintain pricing relative to the marketplace. IC Agent shall be notified in writing of any such price change at least thirty (30) days prior to the effective date of any such changes. MPad may from time to time, in its sole discretion, provide promotional pricing, discounts, credits, contests or service features. IC Agent shall be notified of such promotions within fifteen (15) days prior to the effective date of any such promotions.
9. Use of Name. IC Agent is prohibited from using MPad's name, logo and promotional or similar material for any purpose other than to obtain Customers for MPad under this Agreement. All materials used in conjunction within this Agreement must be approved by MPad, including but not limited to press releases, promotional literature, electronic mails, and support materials. as between IC Agent and MPad, MPad owns all right, title and interest in and to any MPad intellectual property, including but not limited to trademarks or copyrighted materials.
10. Agreement Termination. This agreement may be terminated if:
10.1 The term of this Agreement begins the first day of the month following the execution of this Agreement by both parties ("Effective Date") and continues for a period of one (1) year. Either party may terminate this Agreement with or without cause at any time upon ninety (90) days prior written notice to the other party.
10.2 MPad may terminate, this Agreement with cause: (1) for breach by IC Agent of any provision of this Agreement provided that written notice of breach has been given to IC Agent and such breach has not been cured within five (5) days after delivery of such notice; (ii) immediately upon notice and without any cure period for any Irregular Marketing Activity by IC Agent, (iv) immediately upon notice and without any cure period if IC Agent's actions are deemed by MPad in its discretion to be for any illegal purpose or if IC Agent sends any message which is illegal, obscene, disparaging, indecent, threatening or harassing, including but, not limited to, the transmission of unsolicited messages, or messages which infringe any third party's proprietary right. For purposes of this Agreement, "Irregular Marketing Activity" means any activity that constitutes a clear and material breach or is otherwise clearly and materially inconsistent with the terms of this Agreement or which, in MPad's reasonable judgment, would harm MPad's reputation if it were publicly known.
10.3 MPad has no liability to IC Agent for commissions from usage by a MPad Customer if IC Agent knowingly solicited such a customer who uses MPad Services to send any message which is illegal, obscene, disparaging, indecent, threatening, harassing, or morally reprehensible, including but not limited to, the transmission of unsolicited messages which infringe any third party's proprietary right. MPad also has no obligation to pay commissions in any instance where IC Agent is knowingly involved in any deceitful or fraudulent or Irregular Marketing Activity.
10.4 If MPad terminates this Agreement for cause, IC Agent waives all claims for any expected commissions or profits or for any investments, expenditures or commitments made in connection with this Agreement.
10.5 Upon the expiration or termination of this Agreement, IC Agent shall immediately discontinue solicitation of Customer Orders, and cease all references to MPad and MPad Services as well as the capability to order MPad Services.
10.6 All Customers and accounts established by the IC Agent for MPad will remain the exclusive property of MPad.
11. Non-Interference, Non-Solicitation and Non-Disparagement IC Agent will not in any way, directly or indirectly, on the IC Agent's own account or in the course of business, solicit, divert, take away or interfere with the other MPad Customers, its advertisers, suppliers, manufacturers, distributors, wholesalers or other companies with which MPad transacts business.
Each party agrees that any and all knowledge gained through its association with the other, including but not limited to, its services, rates, products, promotions, methods of doing business and Customer names and relationships shall be kept confidential at all times. The IC Agent agrees not to do nothing, which would tend to discredit, dishonor, reflect adversely upon or in any manner injure the reputation of or disparage MPad, its officers, directors, employees, affiliates, or its IC Agents, and to represent MPad and all things pertaining to it in a positive manner during the course of business and for five years subsequent to termination. The IC Agent further agrees that any IC Agent hired by the IC Agent shall be formally advised of the non-solicitation, non-interference, non-disparagement and confidentiality covenants (the "Covenants") contained in this Agreement and the IC Agent agrees to be responsible for the conduct of all IC Agents and shall indemnify, defend and hold harmless MPad from and against all loss, cost or damage arising from breach of such Covenants by the IC Agents IC Agent.
12. Limitation of Liability. Neither party shall be liable for any special, incidental, indirect, exemplary, punitive, or consequential damages of any kind and however caused, including but not limited to business interruption, loss of data, or loss of profits, business opportunities, or goodwill even if notified of the possibility of such damage.
12.1 MPad HAS NO LIABILITY TO IC AGENT FOR LOST REVENUE, LOST PROFIT OR COMMISSIONS THAT MIGHT HAVE BEEN EARNED HEREUNDER BUT FOR THE INABILITY OR FAILURE OF MPad TO PROVIDE SERVICE TO ANY PERSON SOLICITED BY IC AGENT, OR IN THE EVENT OF DISCONTINUATION OR MODIFICATION OF MPad SERVICES, OR FOR DELAY IN ACCEPTANCE OF OR REJECTION OF ANY ORDER FOR MPad SERVICES.
12.2 In the event MPad is required to enforce or preserve its rights hereunder, IC Agent will pay all of MPad's reasonable attorney's fees and costs including allocable costs of in-house counsel, incurred in connection with any such successful action. MPad MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR OTHERWISE WITH RESPECT TO THE MPad SERVICES PROVIDED UNDER THIS AGREEMENT.
13. Durability No provision of this Agreement which may be deemed illegal, invalid or unenforceable will in any way invalidate any other provisions of this Agreement, all of which will remain in full force and effect.
14. Notification of Fraudulent Activity. To the extent permitted by law, and at the earliest practicable time after IC Agent believes or has a reasonable basis to believe that a Customer's Order is fraudulent or otherwise not valid or is an Irregular Marketing Activity, IC Agent will report that belief and the basis for it to MPad, including the date, MPad Services ordered, and the electronic mail address of the Customer. In the event the IC Agent does not provide such notification, the IC Agent is solely liable for all charges incurred associated with the account in question should there be fraud or Irregular Marketing Activity related issues. MPad at it's sole discretion can offset any fraud or Irregular Marketing related charges against commissions earned in addition to any commissions or bonus payments associated with the original order acceptance.
15. Governing Authority IC Agent agrees that any and all claims arising between the parties out of this agreement shall be controlled by the laws of the State of Idaho, as follows: any dispute, controversy arising out of, connected to, or relating to any matters herein of the transactions between IC Agent and MPad, or this Agreement, which cannot be resolved by negotiation (including, without limitation, any dispute over the arbitrability of an issue), will be settled by binding arbitration in accordance with the J.A.M.S/ENDISPUTE Arbitration Rules and Procedures, as amended by this Agreement. Arbitration proceedings will be held in Coeur d'Alene, Idaho. IC Agent and MPad agree the prevailing party on any action to enforce rights hereunder shall be entitled, in addition to any court awarded damages, their costs and reasonable attorney's fees, whether at arbitration, or on appeal. The parties agree that this provision and the Arbitrator's authority to grant relief are subject to the United States Arbitration Act, 9 U.S.C. 1- 16 et seq. ("USAA") and the provisions of this Agreement. The parties agree that the arbitrator have no power or authority to make awards or issue orders of any kind except as expressly permitted by this Agreement, and in no event does the arbitrator have the authority to make any award that provides for punitive or exemplary damages. The award may be confirmed and enforced in any court of competent jurisdiction. All post-award proceedings will be governed by the USAA. If any IC Agent files a claim or counterclaim against MPad or any of its officers, directors, employees or affiliates in any such arbitration, an IC Agent shall do so only on an individual basis and not with any other IC Agent or as a part of a class action. The IC Agent consents to the jurisdiction and venue of such.
16. Changes to Agreement, Assignment. Changes to this agreement must be in writing and signed by both parties. Any changes so executed will become part of the original agreement. Neither the whole nor any part of the interest of IC Agent in this appointment may be transferred or assigned by IC Agent without the express prior written consent of MPad.
17. Miscellaneous. 17.1 Ownership of IP. IC Agent represents and warrants that during the Term: (i) IC Agent's representations to any third party, does not and will not infringe any copyright, trademarks, or trade secrets of any third party and does not and will not constitute a defamation or invasion of the rights of privacy or publicity of any third party; and, (ii) the IC Agent's conduct does not violate the laws, statutes, or regulations of any jurisdiction.
17.2 IC Agent has no authority to bind MPad by contract or otherwise or to make representations as to the policies and procedures of MPad. IC Agent acknowledges and agrees that the relationship arising from this Agreement does not constitute or create a general agency, joint venture, partnership, employee relationship or franchise between them.
17.3 IC AGENT SHALL MAKE NO WARRANTIES RELATING TO MPad SERVICES DESCRIBED HEREIN EXCEPT AS SET FORTH IN SALES LITERATURE PROVIDED TO IC AGENT BY MPad OR AS SET FORTH IN THE FORM OR FORMS OF ORDERS PROVIDED IC AGENT BY MPad, OR AS OTHERWISE EXPRESSLY PERMITTED BY MPad IN WRITING.
17.4 A signature delivered by facsimile transmission shall be effective to bind the executing party. This Agreement may be retained or stored by either party solely in an electronic format, and any reproduction of this Agreement by reliable means from an electronic format shall be deemed an original.