Provider-Advertiser Agreement Terms

These Provider-Advertiser Agreement Terms & Conditions (the “Terms”) apply to all ordering documents including any statements of work (SOWs) that incorporate these terms (collectively, the“Agreement”) as between Mighty LLC, a Nevada limited liability company with its principal office located at 5940 South Rainbow Boulevard #4086 Las Vegas, NV 89118 ( “Provider”), and the entity accepting these Terms and identified in the applicable SOW (“Advertiser”). Provider and Advertiser are referred to as the“Parties,” and each individually as a “Party.” Upon full execution of the applicable SOW, the Agreement forms a binding contract between Provider and Advertiser related to Provider’s provision of its online marketplace (the “Mighty Marketplace”) and as linked on third party sites (the “Partner Sites”), marketing services, lead generation, market research, and / or in-person sales (collectively, the “Mighty Services”) to promote and sell advertisers’ products and services to prospective and / or actual small business customers (“Provider Customers”). Provider, its affiliated entities, the owner (and affiliates) of the Partner Site(s) (the“Partners”) and any representatives that may perform services as part of the MightyServices are collectively referred to as the “Provider Group.”  

THE AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND JURY TRIAL WAIVER AS DESCRIBED IN SECTION 13.1.

1.       Advertiser Responsibilities

1.1 Offer Presentation: Advertiser will provide Provider with images, descriptions, and details regarding the discounts or promotions it wishes to make available to Provider Customers in accordance with the format as may be specified by Provider from time to time (the “Offer” or “Offers”). The Offer must be at least as favorable as any discounts or offers Advertiser provides through comparable channels and must be more favorable than what is publicly available to Provider Customers. Advertiser will have the right, atAdvertiser’s discretion, to specify Provider Customer messaging related to anyOffer. With Advertiser’s consent, Provider may assist Advertiser in preparing such messaging for publication, which may include design, composition, text, and artwork. Provider retains all rights, including copyright, to all content created by Provider (excluding any marks contained therein of Advertiser). TheParties acknowledge and agree that Provider will be solely responsible for claims arising from any deviations from the Advertiser approved or provided customer messaging and training. Advertiser will be solely responsible for(including, for Provider Group’s adherence to) any Advertiser provided or approved Provider Customer messaging and training. Advertiser shall also be solely responsible for any installation and Provider Customers’ use ofAdvertiser’s products / services.

1.2 Advertiser Website Requirements: Advertiser shall maintain a website or landing page (the “Advertiser Site”) to process Provider Customer transactions and provide a hyperlink (the “Link”) enabling Provider Customer to access the Offer via the Mighty Marketplace. Via the Link, Advertiser shall accept a Provider Customer identification parameter, single use token, single sign-on (SSO) or similar mechanism (“Unique Identifier”) that Advertiser can use to uniquely identify the Provider Customer and use such Unique Identifier when providing monthly reporting.

1.3 Data Protection: Advertiser shall protect all Provider Customer information in its possession or control (including, transaction data and personal information) in compliance with all applicable local, state and federal laws or regulations including compliance with data privacy laws(collectively, “Applicable Laws”) and where applicable, the Payment CardIndustry Data Security Standards (PCI DSS).

1.4 Provider Customer Support: Advertiser shall be responsible for providing sufficient and well-trained staff to service, in an efficient and timely manner, inbound calls and email inquiries which shall be directed by theParties to the phone numbers or email address(es) set forth in each SOW to answer and resolve all Provider Customer inquiries related to the Offer unless specific to the conduct of Provider Group which shall be directed to Provider.

1.5 Training: Advertiser shall provide initial training to Provider onAdvertiser’s Offer, policies, and any other related issues (and prompt updates thereto, in the event of change) relevant to Provider Group providing the MightyServices pursuant to this Agreement.

1.6 Reporting: During the Term (and continuing after the Term for ProviderCustomers referred during the Term), provide such reporting and account information as Provider may from time-to-time reasonably request describing all activities related to Provider Customers’ interaction and / or engagement with theOffers, including the specific reporting requirements set forth in each applicable SOW.

1.7 Partner Sites: Provider may embed and/or white-label its MightyMarketplace linked on Partner Sites. If Advertiser chooses to excludeOffers from any such Partner Sites then Advertiser must inform Provider and Provider will remove any Offers from the requested Partners Site(s) within ten (10) business days of Provider’s receipt of Advertiser’s notice.

2.       Provider’s Responsibilities

2.1 Offer Onboarding: Provider will support the implementation ofAdvertiser’s Offer within the Mighty Services, as further described in the relevant SOWs.

2.2 Marketing Support: Provider may market or promote the Offers per any applicable SOWs.

3.       Payment Terms

3.1 Fees: In consideration for the services rendered by Provider,Advertiser shall pay to Provider all fees and expenses each as described in the applicable SOW on all sales of Offerings to Provider Customers, or other fees and expenses due in accordance with an SOW. Unless otherwise expressly provided in an SOW, Advertiser shall pay for all fees and expenses set forth in an SOW for services performed during the term of the SOW, including for all ProviderCustomers referred on or prior to the termination date (even if the fee realization event for referrals occurs after the term of the applicable SOWs).

3.2 Payment of Invoices: Unless otherwise specified in the SOW, all payments shall be made on or before thirty (30) days of delivery of each invoice.  Any late payments shall bear interest at the lesser of the rate one point five percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Advertiser shall also reimburse Provider for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

3.3 Taxes: Advertiser will pay all federal, state, and local taxes arising out of any sale of any Offer.

3.4 Right to Audit: Provider shall have the right, upon reasonable written notice to Advertiser and during Advertiser’s normal business hours, to audit Advertiser’s books, records, and other documents reasonably related to the calculation and payment of fees due to Provider pursuant to the Agreement.The audit shall be performed by Provider or an agent of Provider that Provider designates. The audit shall be limited to verifying the accuracy of payments made to Provider in the two (2) year period preceding the audit request date. Any underpayments revealed by the audit shall promptly be paid by Advertiser to Provider, together with interest at the lesser of the rate one point five percent (1.5%) per month or the highest rate permissible under applicable law. Any overpayments revealed by the audit shall be refunded by Provider to Advertiser. Advertiser shall maintain adequate books, records, and supporting documentation to allow Provider to verify payment calculations and payments for at least two (2) years after the date when Advertiser provided accurate reporting to Provider under the Agreement. If the audit reveals an underpayment of more than 5% for any payment, Advertiser shall, in addition to paying the underpayment and interest, reimburse Provider for the reasonable costs and fees of the audit. Provider may exercise its audit rights no more than once per calendar year.

3.5 Rights: For avoidance of doubt, the rights of Provider to audit and impose interest and other additional obligations on Advertiser contained in this Section 3 are in addition to all other rights and remedies available toProvider under the Agreement, applicable law, or in equity.

4.       Term and Termination

4.1  Duration: These Terms begin on the effective date of the initial SOW subject to these Terms and remain in effect until sixty (60) days following the termination of the last remaining SOW.

4.2 Termination: Unless otherwise expressly stated in the SOW, eitherParty may terminate any SOW and / or these Terms without cause by providing sixty (60) days’ prior written notice. A termination of these Terms in accordance with the provision of this Section 4 shall terminate all SOWs issued pursuant to this Agreement. For clarity, termination of an applicable SOW shall not automatically terminate other active SOWs.

4.3 Breach: In addition to any remedies that may be provided in theseTerms or an applicable SOW, either Party may terminate any particular SOW or these Terms with immediate effect upon Notice to the other Party, if the otherParty: (i) fails to pay any amount when due under the Agreement and such failure continues for five (5) days after the other Party’s receipt of Notice of nonpayment; or (ii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

5.       Trademark Use

5.1 License: Advertiser hereby grants to Provider Group a limited, non-sublicensable (except as provided in an applicable SOW), worldwide, royalty-free right and license during the term of the Agreement to use, display and make derivative works of the Offer Material (defined in Section 12 below)to perform the services set forth in each SOW. Offer Material shall be returned or destroyed, at Provider’s option, within seven (7) days of termination of the applicable SOW or the Agreement.

5.2 Third-Party Consent: Advertiser shall obtain any third-party consents and complete all necessary filings/licensing procedures with respect to the trade names, service marks, logos, slogans, brands, trademarks and other identifying symbols and indicia provided or authorized by Advertiser forProvider Group’s use for purposes of the Agreement (the “Marks”). All good will related to Provider’s use of the Marks will inure solely to the benefit ofAdvertiser.

5.3 Ownership: The Marks will at all times remain the exclusive property of Advertiser. The Parties agree that Provider may, in Provider’s discretion, use Provider’s own and / or other parties’ marks in the performance of its services hereunder in addition to Advertiser’s Marks.

6.       Representations and Warranties

6.1 Compliance with Laws: Each Party shall be responsible for compliance with Applicable Laws related to its industry including those related to anti-discrimination, data privacy, and anti-corruption, and each Party represents and warrants that they possess all necessary licenses, approvals, and rights to fulfill their respective obligations under this Agreement.

6.2 Provider Compliance: Provider shall be solely responsible for complying with all Applicable Laws generally related to providing its lead generation services, including, without limitation, to the extent applicable, the CAN-SPAM Act, TCPA, and laws generally related to solicitor’s permits.

6.3 Advertiser Compliance: Advertiser shall be solely responsible for all Applicable Laws related to its industry, Offers, Offer Material, including, without limitation, (i) ensuring its messaging (including, the messaging it provides / authorizes for Provider Group’s use) are accurate and legally compliant, (ii) informing Provider of any laws or regulations related to the MightyMarketplace that arise from Advertiser’s products and services or industry,(iii) completing all registrations, filings, licensing, consents and similar procedures related to the Offers and the Marks it provides and / or authorizes Provider Group to use, and (iv) providing the Offers to Provider Customers in accordance with Advertiser’s representations to Provider Customers (including in the Offer Material).

7.       Confidentiality and DataProtection

7.1 Confidential Information: All non-public, confidential, or proprietary information of a Party or its Affiliates (as defined in Section 10)disclosing such information (“Disclosing Party”) to the other Party or itsAffiliates (“Receiving Party”), including, but not limited to, documents, data, business operations, financial forecasts and other financial data, customer lists, pricing, discounts, and rebates, disclosed by Disclosing Party or itsAffiliates to Receiving Party or its Affiliates, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and that is designated, or otherwise identified as “confidential,” in connection with the Agreement (provided, that, for such information disclosed orally, theDisclosing Party must expressly state in writing to the Receiving Party within one week from disclosure that such information is to be treated as confidential), as well as the terms and conditions of the Agreement(collectively, “Confidential Information”), is confidential, solely for the use of performing the Agreement, and may not be disclosed or copied unless authorized by Disclosing Party in writing. Upon Disclosing Party’s request,Receiving Party shall promptly return all such Confidential Information. ThisSection 7 shall not apply to information that is: (a) in the public domain; (b)known to Receiving Party at the time of disclosure on a non-confidential basis; or (c) rightfully obtained by Receiving Party on a non-confidential basis from a third party. If Receiving Party is legally compelled by applicable law, by any court, governmental agency, or regulatory authority or by subpoena or discovery request in litigation, Receiving Party may disclose ConfidentialInformation which it is legally obligated to disclose. For avoidance of doubt, the Parties intend, acknowledge, and agree that the confidentiality provisions contained herein specifically supersede and shall control over any prior agreement between the Parties related to non-disclosure or confidentiality of each party’s (and its Affiliate’s) information / materials disclosed or provided on or after the initial effective date of the first SOW pursuant to thisAgreement.  The confidentiality obligations in this Section 7 shall continue to apply to Confidential Information for a period of one (1) year post-termination of the Agreement.

7.2 Safeguards: Each Party will use reasonable care to protect the otherParty’s Confidential Information and ensure such protections are maintained by their representatives.

7.3 Data Breach Notification: Advertiser will promptly inform Providerof any data breach affecting Confidential Information or personallyidentifiable information and take immediate remedial action.

8.       Indemnification

8.1 Each Party hereto and its affiliates, and their respective successors and assigns (the “Indemnifying Parties”), will defend, indemnify and hold harmless the other party hereto, including Provider Group, and each party’s respective officers, directors, employees, representatives, agents, successors and assigns (the “Indemnified Parties”) from and against any and all fees, expenses, judgments, losses, settlements, damages, liabilities, or claims of any nature, including reasonable attorneys’ fees (collectively, the“Damages”) that are initiated or brought by any entity or person who is not a party to the Agreement that are caused by an Indemnifying Party and that constitute a breach (or a claim that, if true, would be a breach) of theIndemnifying Party’s obligations under the Agreement. Each Party shall be responsible for the acts and omissions of its employees, contractors, representatives, agents and other third parties directly or indirectly retained by it as if the Party’s own acts and omissions in connection with theAgreement.

9.       Limitation of Liability

9.1 Notwithstanding anything to the contrary in the Agreement, neitherParty will be liable to the other for any indirect, consequential, incidental ,or punitive damages arising from the Agreement. Except for indemnified Damages set forth above, each Party’s total liability in connection with the Agreement will be limited to the lesser of (i) finally adjudicated direct damages, or(ii) the amount paid or payable by Advertiser under the Agreement during the twelve (12) months prior to the start date of the alleged damages. The foregoing limitation applies to all causes of action and claims.

10.  Independent Contractor

10.1 Provider is an independent contractor and not an employee, agent or joint venture or partner of the Advertiser. Provider and Provider’s Partner(s) are not providers of the above-described Offers and do not undertake any obligation to provide any Offers or fulfill any obligation to Provider Customers under the agreements between Advertiser (including its Affiliates and agents) and Provider Customers. An “Affiliate” of a specified person or entity means any other person or entity that directly or indirectly controls, is controlled by, or is under common control with, the specified person or entity. For purposes of this definition,“control” means the possession, directly or indirectly, of the power to director cause the direction of the management and policies of the controlled person, whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise. A person or entity shall be presumed to control another person or entity if the first person or entity, directly or indirectly, owns or holds more than 50% of the voting securities or partnership or other ownership interests of the second person or entity.

11.  Non-Exclusivity; Provider Customer Interactions

11.1 Non-Exclusivity: The Parties acknowledge that their relationship will be non-exclusive and that Provider will not be dedicated to any specific campaign of Advertiser. Provider is authorized, in its discretion, to offer its own products and services and those of its other clients / advertisers through the Mighty Services and during any ProviderCustomer interaction. Advertiser hereby acknowledges that Provider may also offer its own cash back offers or other incentives for Provider Customers interested in the Offers.

11.2 Provider Customer Interactions:Any suggestions, requests, recommendations or other feedback provided by a ProviderCustomer, including, without limitation, related to the Offer or Advertiser and/or Advertiser’s other services or goods obtained by the Provider Group or its representatives, whether or not obtained by Provider or its representatives during delivery of the Mighty Services, shall be owned by Provider unlessProvider and Advertiser expressly agree, in writing, including by separate agreement in which Advertiser has engaged Provider to obtain such information.Further, Advertiser acknowledges and agrees that Provider, in its sole discretion, may share such information with Advertiser for Advertiser’s use; provided, that, Provider doing so shall not in any way transfer ownership of such information or limit Provider’s right to use or otherwise exploit such information in any way.

12.  Website Monitoring

12.1 To ensure the integrity of the MightyServices and for the benefit of its users, Provider reserves the right to revise, edit, remove and / or reject any language, content and / or material provided by the Advertiser for use through the Mighty Marketplace (the “OfferMaterial”) or any portion thereof at any time, regardless of whether any suchOffer Material was previously accepted by Provider. Unless otherwise explicitly provided in the applicable SOW: (i) placement or location of Offer Material on the Mighty Marketplaces is not guaranteed, and (ii) any placement condition shall not be legally binding upon Provider and will be treated as a request which Provider may consider.

13.  General Provisions

13.1 Governing Law and Dispute Resolution: The Agreement and all matters arising out of or relating to the Agreement are governed by, and construed in accordance with, the laws of the State of Nevada, without regard to the conflict of laws provisions of such State. All disputes which cannot be resolved through good faith negotiations, will first be submitted to mediation, and if not successfully mediated will then be resolved by an arbitrator selected by the Parties. Any claim under this contract must be settled by binding arbitration in accordance with theArbitration Rules and Procedures of Judicial Arbitration Mediation Services(“JAMS”). The arbitration will take place in Clark County, Nevada. A judgment upon the arbitration award may be entered in any court having jurisdiction. Any claim of either Party not raised in writing and served upon the other within one (1) year of the date such party became (or should reasonably have become)aware of the act / omission giving rise to the claim will be deemed waived and may not thereafter be brought before any court, agency, or arbitrator. For purposes of arbitration, the parties are entitled to file responsive pleadings, cross complaints, demurs, motions to strike, and motions for summary judgment. Additionally, the parties are permitted to conduct discovery pursuant to state and federal law. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS ARBITRATION AGREEMENT WILL OPERATE TO WAIVE ITS RIGHT TO HAVE ITS DISPUTES LITIGATED IN ACOURT OR JURY TRIAL. This Section 13.1 will not be construed to limit or restrict the right of any party to obtain immediate temporary or preliminary injunctive relief or to seek equitable remedies which may be necessary to enforce rights under or provisions of the Agreement.

13.2 Assignment: Neither Party shall assign, transfer, delegate, or subcontract any of its rights or obligations under the Agreement without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section 13.2 shall be null and void. Notwithstanding the foregoing, Provider may assign the Agreement to any other entity within the Provider Group. The Agreement will inure to the benefit of and be binding upon each of the Parties and each of their respective permitted successors and permitted assigns.

13.3 Advertiser Acknowledgement: By executing any ordering documents including any SOWs that incorporate the Terms ,the Advertiser (i) acknowledges that the Provider is a Nevada limited liability company, but may be registered to do business in other U.S. states under the fictitious name or alternate name of “Mighty Business Group”; (ii) acknowledges that theProvider is executing this Agreement and all related SOWs in the state ofNevada; and (iii)  acknowledges and agrees that all services provided by the Provider in accordance with any SOWs are to be deemed performed in Nevada.

13.4   Survival: Provisions necessary for enforcement post-termination will survive, including Sections 1.3, 1.4,1.6, 3, 6, 7, 8, 9, 10, 11 and Section 13.

13.5   Entire Agreement: The Agreement, together with any and all ordering documents including any statements of work(SOWs) that incorporate these Terms, constitutes the entire agreement of theParties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Provider Group makes no representation, inducement, promise, understanding, condition, or warranty other than as expressly set forth in the Agreement andAdvertiser has not relied upon any such representation, inducement, promise, understanding, condition, or warranty in entering into the Agreement. Further, and without limiting the foregoing, Advertiser acknowledges and agrees that any oral or written statements Provider Group has made or will make regarding ProviderCustomers, sales and/or revenue that may be generated are estimates only and no sales, customer or revenue figures are warranted or guaranteed in connection with the Agreement in any way.

13.6 Sever ability: If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

13.7 Counterparts: SOWs may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement as of the effective date set forth thereon. Any delivery of signature pages of counterparts by way of facsimile or by electronic transmittal of scanned images thereof shall constitute delivery hereof.

13.8 Rights are Cumulative: The rights and remedies of the Parties are cumulative. The exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it at the same time or different times, of any other rights or remedies provided bylaw or equity for the same default or any other default by the other Party.

13.9 Modifications: The Agreement, and each of the terms and provisions hereof, may only be amended, modified, waived, or supplemented by an agreement in writing signed by each Party.

13.10 No other Rights: The Parties do not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.

13.11 Notices: All notices, requests, consents, claims, demands, waivers, summons and other legal process, and other similar types of communications hereunder (each, a “Notice”) must be in writing and addressed to Advertiser at the email addresses set forth on the SOW (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section) and all Notices to Provider must go to: legal@mightybusiness.com. All Notices must be delivered by email and are deemed to have been given immediately upon transmission.

13.12 Conflicts: All conflicts between an SOW and these Terms will be resolved in favor of these Terms unless explicitly provided otherwise in such SOW.