Terms & Conditions

1. DEFINITIONS
The Parties hereby agree that capitalized terms used in this Agreement, unless otherwise defined herein or in a particular Order Form, shall have the meanings assigned below: 1.1. “Advertising Offer” means any and all advertising offers, marketing materials, and related collateral that contains call-to-action that drives consumers to contact Merchant and is placed by Merchant on the KIS Network.
1.2. “Advertising Offer Lead” means information from or about a Consumer Lead that is referred to Merchant through the placement of an Advertising Offer by one or more Affiliates.
1.3. “Affiliates” means an individual, company, or other legal entity that is part of the KIS Network and that places Advertising Offer(s) on their website, app, online service, or other platform.
1.4. “Applicable Laws” means any federal, state, and or local laws, regulations, orders, decrees, or other legal requirement that is or has been enacted, promulgated, issued, or taken by any governmental entity, including judicial bodies, to the extent applicable to or binding upon a party with respect to its performance under this Agreement. Applicable Law may include, without limitation (a) all Federal and state laws governing telemarketing, including the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., and corresponding rules, 47 C.F.R. § 64.1200 et seq. (“TCPA”), and the Telemarketing Sales Rule, 16 C.F.R. Part 310 (“TSR”); (b) all Federal and state laws governing advertising and marketing, including the Federal Trade Commission Act, 15 U.S.C. § 45 et seq.; the Controlling the Assault of Non- Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, 15 U.S.C. § 7701 et seq., and corresponding rules, 16 C.F.R. Part 316; and state laws governing unfair and deceptive acts and practices; and (c) all applicable Federal and state laws governing consumer privacy and the collection, use, storage, and disclosure of consumer personal information.
1.5. “Consumer Lead” means the contact details and related information concerning an individual that may be interested in goods or services offered by Merchant, whether provided by Affiliate or the actual consumer.
1.6. “KIS” (or “Us”, “We”, “Our”) means KIS MEDIA LIMITED.
1.7. “Merchant” (or “You”, “Your”) means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which the individual is accepting this Agreement, which uses KIS to provide Advertising Offer(s).
1.8. “Order Form” means a separate ordering document or other online order specifying the Services to be provided hereunder that is entered into between You and Us, including any addenda and supplements thereto. 1.9. “Referral Lead” mean information from or about a Consumer Lead that is collected or obtained by one or more Affiliates through Internet-based marketing channels (such as websites, banners, text links, display networks, contextual engines, emails, pop-up, or interstitial advertisements) or through other offline means (such as telephone, etc.), and is made available by such Affiliate(s) to Merchant through KIS Network.
1.10. “Service” or “Services” means the provision of KIS and any additional products or services that are ordered by Merchant under an Order Form and made available by KIS.
1.11. “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of Merchant, an individual who is authorized by Merchant to use a Service, and to whom Merchant has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Merchant employees, consultants, contractors and agents, and third parties with which Merchant transacts business.

2. PROVISION OF THE SERVICES
2.1. Services Description. KIS allows Merchant to place Advertising Offer(s) on the Network (including the selection of approved media where the Advertising Offers may be placed), or obtain Referral Leads through the KIS Network. 2.1.1. Advertising Offers. Advertising Offers are made available to Affiliates, and Affiliates can choose to place available Advertising Offers on media properties owned or controlled by the Affiliate (e.g., websites, mobile applications, online services, etc.), to generate Consumer Leads.
2.1.2. Referral Leads. Referral Leads are made available to Merchant for purchase through the KIS Network. Referral Leads are not exclusive to Merchant and may be provided to any other merchants on the KIS Network.
2.2. KIS’ Responsibilities. KIS will: (a) make the KIS Network available to You pursuant to this Agreement and any applicable Order Forms; (b) use commercially reasonable efforts to make the Network available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which KIS shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving KIS’ employees), Internet service provider

failure or delay, or denial of service attack; (c) make the Advertising Offer(s) available to Affiliates on the KIS Network; (d) facilitate the connection of Consumer Leads that respond to the call-to-action in the Advertising Offer(s) with Merchant using the KIS Network; (e) make the Referral Leads available to Merchant on the KIS Network; and (f) require Affiliates to provide representations and warranties that Referral Leads containing telephone or mobile numbers are furnished only for individuals who have provided unrevoked, prior express written consent to receive autodialed marketing calls and text messages in accordance with Applicable Law. By using the Services, KIS does not represent or guarantee that Your Advertising Offer will be chosen and/or placed by an Affiliate or that any Consumer Leads will respond to Your Advertising Offer.

3. USE OF THE NETWORK AND OUR SERVICES 3.1. Merchant Compliance Obligations. In carrying out its responsibilities under the Agreement, Merchant agrees that Merchant, Merchant’s Advertising Offers, and Merchant’s use of Advertising Offer Leads and Referral Leads will comply with all Applicable Laws, including the TCPA, TSR, and CAN-SPAM Act.
3.2. Usage Restrictions. You will not: (a) make any Service or the Network available to anyone other than Users, or use any Service or the Network for the benefit of anyone other than Merchant, unless expressly stated otherwise in an Order Form, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Network, or include any Service or Network to any third party, including in a service bureau or outsourcing offering, (c) sell, resell, license, sublicense, distribute, make available, rent or lease any Advertising Offer Leads and Referral Leads to any third party, (d) use any Referral Leads in a manner that is restricted in the terms for use of such Referral Leads, (e) use a Service or the Network to store or transmit infringing, defamatory, or otherwise unlawful or tortious material (in an Advertising Offer or otherwise), or to store or transmit material in violation of third-party privacy or intellectual property rights, (f) use the Service or Network to store or transmit any malicious code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (g) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (h) attempt to gain unauthorized access to any Service or the Network or its related systems or networks, (i) permit direct or indirect access to, or use of, any Service or the Network in a way that circumvents a contractual or technical usage limit, or use of any the Services or Network that in any manner that violates the Terms of Use, or to access or use any of KIS’ intellectual property except as permitted under this Agreement or an Order Form, (j) modify, copy, or create derivative works based on a Service or the Network or any part, feature, function or user interface thereof, (k) frame or mirror any part of any Service or the Network, other than framing on Merchant’s own intranets or otherwise for Merchant’s own internal business purposes or as permitted in the Order Form, or (l) disassemble, reverse engineer, or decompile a Service or the Network, or access a Service or the Network to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions, content, or graphics of the Network, (3) copy any ideas, features, functions, content, or graphics on the Network or (4) determine whether the Services or the Network are within the scope of any patent. Any use of the Services or the Network in breach of this Agreement or any Order Form(s), by Merchant or Users that in KIS’ judgment threatens the security, confidentiality, integrity or availability of KIS’ Services or Network, may result in KIS’ immediate suspension or termination of Your (or Your User’s) use of the Services or Network, however KIS will use commercially reasonable efforts under the circumstances to provide Merchant with notice and an opportunity to remedy such violation or threat prior to such suspension or termination.
3.3. Merchant Responsibilities. You will: (a) be responsible for Users’ compliance with this Agreement, and any Order Form, (b) be responsible for the accuracy, quality and legality of the Advertising Offer, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the KIS Network, and notify Us promptly of any such unauthorized access or use, and (d) use the KIS Network, and any Advertising Offer Lead or Referral Lead only in accordance with this Agreement and any Order Form, and Applicable Laws.

4. FEES AND PAYMENT FOR THE SERVICES
4.1. Fees. Merchant shall pay KIS a fee for each Advertising Offer or Referral Lead as set forth in an Order Form or as otherwise indicated on the KIS Network (“Lead Fee” and collectively, “Lead Fees”). Such Lead Fees shall be paid by Merchant regardless of whether (a) an Advertising Offer generates an Advertising Offer Lead, or (b) the consumer agrees to purchase Merchant goods or services Lead Fees are accrued on a weekly basis, and invoiced monthly pursuant to Section
4.2. Invoicing and Payments. You will provide KIS with valid and updated payment card information, or with a valid purchase order or alternative document reasonably acceptable to KIS. If You provide payment card information to KIS, You authorize KIS to charge such payment card for all applicable Services on the payment date identified in any invoice, unless alternative payment terms are set forth in an Order Form. If the Order Form specifies that payment will be by a method other than a payment card, KIS will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due ninety (90) days from the invoice date. You are responsible for providing complete and accurate billing and contact information to KIS and notifying KIS of any changes to such information.
4.3. Overdue Charges. If any invoiced amount is not received by KIS by the due date, then without limiting KIS’ rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) KIS may condition future use of the Services and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoicing and Payment).
4.4. Suspension of Service and Acceleration. If any amount owed by You under this Agreement or any other agreement between You and KIS is thirty (30) or more days overdue, KIS may, without limiting KIS’ other rights and remedies, accelerate Your unpaid fee obligations under all agreements so that all such obligations become immediately due and payable, and suspend the Services to You until such amounts are paid in full. Other than for customers paying by payment card or direct debit whose payment has been declined, KIS will give You at least ten (10) days’ prior notice that Your account is overdue pursuant to the contact information you’ve provided in your KIS account, or as otherwise designated in any Order Form, before suspending services to You.

5. ADVERTISING OFFERS; CREATIVE MATERIALS
5.1. Responsibility for Advertising Offers. Merchant shall provide the creative materials to be used as Advertising Offers and is solely responsible for the content in such Advertising Offers.
5.2. Deliverables from KIS. In certain instances, Merchant may contract for KIS to create Advertising Offers for Merchant. Merchant shall own and retain all rights, title, and interest in and to such final Advertising Offers. To the extent applicable, Merchant will be deemed the author of the Advertising Offers and such Advertising Offers will constitute “works made for hire” under the U.S. Copyright Act (17 U.S.C. § 101 et seq.) and any other applicable copyright law. KIS shall not be restricted from using similar creative ideas or executions with other KIS customers. To the extent Merchant provides information or materials to KIS to incorporate into the Advertising Offers, Merchant remains fully responsible for the accuracy and ability to use such information or materials in the Advertising Offers.

6. RELATIONSHIP BETWEEN THE PARTIES

6.1. KIS Activities; Exclusivity. The Parties acknowledge that KIS shall perform its obligations under this Agreement and act at all times as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures, agents, employer/employee, fiduciaries, or anything other than independent contractors, and the Parties expressly disclaim any intention to create a partnership, joint venture, association or other such relationship. Neither Party is granted any right (except as expressly provided herein) on behalf of the other Party to assume or create any obligation or responsibility binding such other Party. Merchant acknowledges and agrees that KIS may provide the same or similar services to others. For the avoidance of doubt, neither KIS nor any Affiliate shall be deemed to be advertising on behalf of Merchant solely in connection with the generation of any Advertising Offer Leads or Referral Leads.

7. CONFIDENTIALITY

7.1. Confidentiality. Each Party agrees to treat and hold as confidential (and not disclose or provide access to any person, except on a need-to-know basis in order to carry out the business relationship contemplated hereunder) all business, technical, financial or other information of the disclosing Party, including, without limitation, information relating to trade secrets, patent applications, product development, posts and associated HTML, form functionalities, web technologies, data validation techniques, computer information systems, policies, and strategies (collectively, “Confidential Information”). Each Party further agrees to use the Confidential Information of the other Party solely for the purpose of advancing the business relationship contemplated under this Agreement and otherwise as expressly permitted or directed by the disclosing Party, and each Party further agrees not to reverse engineer such Confidential Information. Notwithstanding the foregoing, each Party may make disclosures required by law or court order, if it provides the other Party with reasonable prior written notice and reasonable assistance in seeking a protective order and/or other limits on disclosure of its Confidential Information.
7.2. Exceptions. The restrictions set forth in Section 7.1 shall not apply to Confidential Information that (a) was generally known or otherwise generally available to the public prior to disclosure hereunder, or becomes generally known to the public subsequent to such disclosure through no wrongful act or omission of the receiving Party, (b) was known to the receiving Party at time of disclosure, (c) was received by the receiving Party, without restriction, from a third party not under an obligation to the disclosing Party not to disclose it and otherwise not in violation of the disclosing Party’s rights, or (d) has been specifically identified and approved in writing in advance for release by the disclosing Party.

8. TERM AND TERMINATION

8.1. Term. This Agreement commences on the Effective Date and continues until all Services hereunder have expired or have been terminated and/or the Merchant’s KIS Network account has been canceled. This Agreement shall remain effective for so long as any Services under an Order Form being provided by KIS; however, this shall not limit the Party’s ability to terminate an Order Form pursuant to this Agreement or as provided in the Order form.
8.2. Immediate Termination. Either Party may terminate this Agreement upon written notice, effective immediately, if: (A) the other Party is in material breach which (i) is incapable of being cured or (ii) if capable of being cured, remains uncured for thirty (30) days after written notice of the breach; or (B) should any of the following occur: (i) the valid and legitimate presentation of a petition or an application for a winding-up, administration (whether out of court or otherwise) or dissolution of the other Party; (ii) the taking possession or sale by an encumbrancer of any of the other Party’s assets relevant to this Agreement; (iii) the appointment of a liquidator, trustee in bankruptcy, judicial custodian, manager, receiver, administrative receiver, administrator or similar officer (in each case whether out of court or otherwise) over or in respect of the other Party or any of its assets; or (iv) the other Party cease to do business without a successor or threaten to cease doing business at any time.
8.3. Thirty-Day Termination. Either Party has the right to terminate this Agreement for any or no reason by providing the other Party thirty (30) days prior written notice, except as otherwise provided in any Order Form.

9. REPRESENTATIONS AND WARRANTIES

9.1. Merchant. Merchant represents and warrants that: (a) it has full power and authority to enter into this Agreement and to fulfill its obligations hereunder; (b) its performance of this Agreement and of its obligations hereunder will not breach or conflict with any separate agreement by which it is bound; (c) it will comply with all applicable laws and regulations; and (d) to the extent Merchant provides information and materials to KIS to incorporate into Advertising Offers, such information and material is accurate, truthful, and will not infringe upon, violate or misappropriate any intellectual property of any third party.
9.2. KIS. KIS represents and warrants that: (a) it has full power and authority to enter into this Agreement and to fulfill its obligations hereunder; (b) its performance of this Agreement and of its obligations hereunder will not breach or conflict with any separate agreement by which it is bound; and (c) it will comply with all applicable laws and regulations.

10. LIMITATION OF LIABILITY

10.1. THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY IDENTIFIED IN THIS AGREEMENT, NEITHER KIS, NOR ITS AFFILIATES, PARTNERS OR LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION AND FUNCTIONALITY OF THE SERVICES, THE NETWORK, OR CONTENT MADE AVAILABLE BY OR THROUGH THE SERVICES INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10.2. IN NO EVENT WILL: (A) KIS BE LIABLE TO MERCHANT FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, REVENUE, OR PROFITS), COSTS, OR EXPENSES (INCLUDING BUT NOT LIMITED TO LEGAL FEES AND EXPENSES), WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY THEORY INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, BREACH OF WARRANTY, OR NEGLIGENCE; OR (B) THE LIABILITY OF KIS EXCEED THE LEAD FEES PAID UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

11. INDEMNIFICATION

11.1. Merchant. Merchant will defend, indemnify, and hold harmless KIS and its directors, officers, managers, employees, agents, successors and assigns from all losses, liability, damages, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s fees and expenses) arising from or relating to any claims, actions, proceedings or investigations (collectively “Claims”) brought by a third party arising from or related to: (a) Merchant’s gross negligence; (b) any breach or alleged breach of Merchant’s representations and warranties; (c) any allegation that the Advertising Offers provided by Merchant or the information or materials provided by Merchant for inclusion in the Advertising Offers infringe upon, violate or misappropriate any intellectual property right of any third party; or (d) any allegation that Merchant’s use of an Advertising Offer Lead or Referral Lead violated any Applicable Law or use restrictions associated with the Advertising Offer Lead or Referral Lead.
11.2. KIS. KIS will defend, indemnify, and hold harmless Merchant and its directors, officers, managers, employees, agents, successors and assigns from all losses, liability, damages, fines, penalties, costs, and expenses (including, without limitation, court costs and reasonable attorney’s fees and expenses) arising from or relating to any Claims brought by a third party arising from or related to: (a) KIS’ gross negligence; (b) any breach or alleged breach of KIS’ representations and warranties; or (c) any allegation that the Service or Network infringe upon, violate, or misappropriate any intellectual property right of any third party.

11.3. Process. Each Party agrees to (a) promptly notify the other party in writing of any Claim and give the other party the opportunity to defend or negotiate a settlement of any such Claim at that party’s expense; and (b) cooperate fully with the other party, at that other Party’s expense, in defending or settling such Claim. The indemnifying Party may, upon written notice of any Claim to the indemnified Party, undertake to conduct all proceedings or negotiations in connection therewith, assume the defense thereof, and if it so undertakes, it may also undertake all other required steps or proceedings to settle or defend any such Claim, including, without limitation, the employment of counsel which is reasonably satisfactory to the indemnified Party, and payment of all expenses. The indemnified Party will have the right to employ separate counsel and participate in the defense of any Claim at its expense. The indemnifying Party must reimburse the indemnified Party upon demand for any payments made or loss suffered by the indemnified Party at any time after the date hereof based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement relating to any Claim. The indemnifying Party may not settle any Claim on the indemnified Party’s behalf without first obtaining the indemnified Party’s written permission, which permission will not be unreasonably withheld, conditioned or delayed.

12. GENERAL PROVISIONS

12.1. Controlling Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the United Arab Emirates, excluding that body of laws known as conflicts of law. Any legal action or proceeding arising under this Agreement will be brought exclusively to an arbiter in Dubai, United Arab Emirates, or the federal or state courts located in the United Arab Emirates, as applicable, and the Parties hereby irrevocably consent to personal jurisdiction and venue therein.
12.2. Modification. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of each Party.
12.3. Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between the Parties regarding its subject matter and supersede all other prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter.
12.4. Notices. Each notice, consent, request, or other communication required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.

12.5. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
12.6. Successors and Assigns. 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, and any attempt to assign or transfer this Agreement other than in accordance with this provision will be null and void. Notwithstanding the foregoing, either Party may assign this Agreement without such consent to a third party that merges with or acquires the assigning party or acquires all or substantially all of such assigning party’s assets that relate to this Agreement.
12.7. Waiver. The failure by any Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
12.8. No Third Party Rights. Other than the Parties, no person or entity will have or acquire any right by virtue of this Agreement unless otherwise agreed to by all the Parties hereto.
12.9. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument.