TERMS & CONDITIONS FOR ADVERTISER(S) AND PUBLISHER(S)
These terms and conditions (hereinafter referred to as the “Terms and Conditions” and/or the “Agreement”) govern the relationship between:
ADSUPPLY INC., with registered address at 10811 Washington Blvd, Culver City, CA 90232 (the “Company”, “we” or “our”), operating the advertising and marketing network of advertisers and publishers, on or through its websites, including but not limited to ui.adsupply.com (the “Company’s Website(s)”) (collectively the “Network”) and you (hereinafter referred to as the “Publisher”, “Advertiser” or “you“) (collectively referred to as the “Parties”).
By visiting the Company’s Website(s), or accessing any content or material that is made available on or through the Network, or otherwise by signing up on the Company’s Website(s), using it or accessing any of the Company’s services in connection with the Network or the Order or Insertion Order (as defined below), in any manner, you are entering into a binding contract with the Company, and you agree to be bound by this Agreement.
This Agreement affects your legal rights, responsibilities and obligations, and governs your use of the Network, and serves as the terms and conditions to the order entered into by and between you as Advertiser and the Company (the “Order”) or the insertion order (the “IO“) entered into by and between you as Publisher and the Company. If you do not wish to be bound by this Agreement, do not use the Network and uninstall any downloads and applications in connection with the Company’s Websites (but the latest version of the Agreement in place at the time of your use will govern any such use).
For the purposes of this Agreement, the Parties agree that, when used capitalized herein, the following terms shall have the following meanings unless they are otherwise defined in this Agreement:
“Advertiser” means a person (legal or natural), or any other person acting on behalf of the former with express or implied authority, like an agency, which creates the Advertising Material and wishes to use the Network of the Company to acquire traffic through the Advertising Material to the Advertiser’s Website(s) (as defined below).
“Advertising Material” means any type of content, including without limitation, text, layouts, artwork, graphics, scripts, presentations, drawings, documents, logos, designs, charts, images, photos, films trademarks and copyrights for any type of advertising including, but not limited to banners, text ads, pop-ups and pop-unders, and any other type of a promotional message for the purpose of publicizing products or services, created by the Advertiser.
“Advertiser’s Website(s)” means the landing page, website, or app to which end users may be redirected when they click on or interact with the Advertising Material disclosed, embodied, incorporated or otherwise published on the Publisher’s Website(s).
“Personal Data” means any information relating to an identified or identifiable natural person which is processed by one or more of the Parties pursuant to this Agreement; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Publisher” means a person (legal or natural) who is a client of the Company and who distributes the Advertising Material on its Publisher’s Website(s).
“Publisher’s Website” means the space, including without limitation, homepage, website or e-mail, where the Publisher incorporates or embodies the Advertising Material.
“Intellectual Property Rights” means any and all patents, utility models, rights to inventions, copyright and neighboring and related rights, oral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
PROVISION OF THE SERVICES
Provision of services to Publishers
Through the present Agreement, the Company may provide the Publisher with advertising solutions to monetize its traffic and its mobile and internet inventory spaces on or through the Network.
The Company shall make available to the Publisher the Advertising Material through the Network, which the Publisher shall display on the Publisher’s Website(s). The Advertising Material will serve to identify the Publisher as a member of the Network and will establish a link from the Publisher’s Website(s) to the Advertiser’s Website(s).
The Parties recognize that the Publisher is given the possibility to monetize its traffic through the Network; however, the Company is not able to guarantee any success since it will depend also on the quality of the traffic.
Provision of services to Advertisers
Through the present Agreement, the Company may provide the Advertiser with services like placement of Advertiser’s Advertising Material on the Network, strategies to increase Advertiser’s clients’ portfolio through targeted traffic, etc.
The Company enforces to work constantly on solutions to provide better service to its clients, whether Advertisers or Publishers.
REPRESENTATIONS AND WARRANTIES
The Advertiser represents and warrants that:
- It is authorized to bind the Advertiser to the terms and conditions of this Agreement;
- It has the full legal authority to use and to authorize others to use all elements in and pertaining to the Advertising Material submitted to the Company for insertion, including without limitation (i) the names, likenesses, biographical information and/or any other identifying attributes of any individual who is identifiable in the Advertising Material; (ii) all elements of the Advertising Material that are subject to protection under any and all Intellectual Property Rights law, including without limitation, the copyright, trademark, unfair competition and/or patent laws and regulations of any jurisdiction in which the Advertising Material may be exhibited; (iii) all “testimonials” (as that term is commonly understood in the advertising industry) and/or endorsements and/or sponsorships contained in the Advertising Material;
- No claim has been made that the Advertiser does or may not have any right with respect to the Advertising Material that is reasonably necessary to effectuate the purposes of the Agreement hereunder, and there is not now valid or outstanding;
- No part of the Advertising Material has been wrongfully and/or without due license taken from any other work and there has been no claim that the Advertising Material violates, conflicts with, or infringes upon, and the Advertising Material does not violate, conflict with or infringe upon, any rights, especially Intellectual Property Rights, whatsoever (including, without limitation, any copyright, common law or statutory, throughout the world; any right of publication, performance, or any other right in any work; and any right against libel, slander, invasion of privacy or similar right) of any person, firm or corporation;
- The Advertising Material and all elements thereof do not include any of the following (i) misleading actions(such as an advert which gives false information about the existence of a specific price advantage), (ii) misleading omissions (such as an advert which does not state the minimum duration of a contract, (iii) aggressive practices (such as knowingly exploiting any specific misfortune or circumstance, which could impair the consumer’s judgment, so as to influence the consumer’s decision), and (iv) commercial practices which contravene professional diligence.
- The Advertising Material and all elements thereof are not subject to any third party claims, and the Advertising Material and all elements thereof have been fully cleared by the Advertiser for all uses set forth herein, and no payments will be required to be made to any third party in connection with the use of the Advertising Material (or, if any such payments are required, Advertiser will be solely responsible therefor and indemnify and hold harmless Company in connection therewith);
- The Advertising Material shall not launch pop-ups, auto-install executables, ActiveX, prompted executables, hidden browser windows, or other non-specified and questionable media content. The violators of this restriction will be subject to immediate termination, legal action for user and brand damages. Agencies, brokers, and media buyers representing advertisers are completely responsible for all and any such activity on a campaign and will be held completely liable; and
- The Advertiser shall comply in all respects with all applicable laws, rules, regulations, and orders of any governmental authority as well as all legal requirements governing its duties, obligations, and business practices and shall obtain any permits or licenses necessary for its operations. The Advertiser shall not take any action in violation of any applicable legal requirement that could result in liability being imposed on the Company. The Advertiser shall further ensure that the Advertising Material adheres to the relevant advertising codes in force from time to time, including but not limited to the code issued by the Cyprus Advertising Regulation Organization and other analogous codes in force in the respective countries.
The Publisher represents and warrants that:
- It owns and/or has the right to use all materials contained on the Publisher’s Website(s), including, without limitation, all Intellectual Property Rights such as copyrights, trademarks and other proprietary rights in and to such materials;
- It has secured the requisite permission to use any person’s name, voice, likeness and performance as embodied in such materials, or any other element contained in said material and the Publisher’s Website(s) will not infringe any Intellectual Property Rights including but not limited to the patents, copyrights, trademarks or any other right of any third party.
- the Publisher’s Website(s) shall not contain, or contain links to, content promoting the use of alcohol, tobacco or any illegal substance; expletives or inappropriate language; content promoting illegal activity, racism, hate, “spam,” mail fraud, pyramid schemes, or investment opportunities or advice not permitted under law; content that is libelous, obscene, objectionable, defamatory, contrary to public policy, or otherwise unlawful, or any other content deemed inappropriate by the Company in its sole discretion.
- It shall comply in all respects with all applicable laws, rules, regulations, and orders of any governmental authority as well as all legal requirements governing its duties, obligations, and business practices and shall obtain any permits or licenses necessary for its operations, and will not take any action in violation of any applicable legal requirement that could result in liability being imposed on the Company. The Publisher agrees that it shall not run “robots” or “spiders” on Publisher’s Website(s) or use any means to artificially increase the Impressions available with respect to the Advertising Material.
PAYMENT TERMS AND TAXES
Advertiser Payment Terms and Taxes
Invoicing. Invoices may be issued as of the Start Date of the contract period set forth in the Order. The Advertiser must make the payment to the Company before any Advertising Material shall be run, in US Dollars. Any campaign affected by late provision of the Advertising Material will be billed at a pro-rated amount after seventy-two (72) hours. All amounts and fees stated or referred to in the invoices are exclusive of taxes, duties, levies, tariffs and other governmental charges (including, without limitation, VAT, withholding and associated taxes) (collectively, “Taxes”). The Advertiser shall be responsible for paying all Taxes and associated reporting due as a result of the services described in this Agreement. The Advertiser certifies that it is acting as a professional and thus is responsible for any Taxes and associated reporting to be owed by the Advertiser in its own name towards any state and/or governmental authorities.
Refund Policy. The Company strives to offer the best service possible to its clients. However, our services may not suit every business and Advertisers who have followed our Terms and Conditions may request a return of the balance remaining on their account at any time. In order to request a return of funds please talk with your account representative or contact our accounting department at +1.424.298.8950 or [email protected] and they will respond within 48 hours to process your request. The Advertisers whose accounts or Orders have been canceled / terminated by the Company for violating this Agreement are not entitled to a refund and any balance remaining on their account at the time of cancelation / termination will be set off against any damage caused to the Company because of the Advertiser’s violation, without prejudice to any of the Company’s right to a claim of damages or other relief.
Discounts. The Advertiser understands that all frequency and/or volume discounts are based on the Advertiser’s fulfillment of the schedule indicated on the Order. If, for any reason, this schedule is not fulfilled during the term provided for herein and/or cancelled pursuant to the clause “Order Cancellation” hereunder, the Advertiser agrees to pay the standard rate on all Advertising Material run.
Order Cancellation. The cancellation of an Order must be made in writing five (5) days in advance of the Order’s Start Date. The Advertiser shall be fully liable for the cost of placements ordered and not cancelled prior to five (5) days before such Order is scheduled to run. In the event that placement of Advertising Material is ordered and the Advertiser fails to deliver the Advertising Material in a technical and physical form and manner that the Company directs as necessary for proper placement and exhibition, the Advertiser shall be liable for the cost of such placement, even if such Advertising Material is not, in fact, placed and/or exhibited. The cancellations of live campaigns require two (2) business day written notice.
Publisher Payment Terms and Taxes
Compensation. The Company shall invoice and collect from the Advertisers all advertising fees. The Publisher shall invoice the Company and the Company shall pay the Publisher its share of Net Billings as set forth in the IO.
“Net Billings” means amounts collected from the Advertisers by the Company for the sale of the Advertising Material on the Publisher’s Website(s), which amounts may have been reduced by, among other reasons, actual applicable rate card and volume discounts, and third-party agency commissions. In the event the Publisher’s compensation amount is less than Fifty Dollars ($50.00) for any given month, the Company shall hold payment until the total compensation due to the Publisher is greater than Fifty Dollars ($50.00).
Payment Models. The Publisher and the Company shall agree upon the two payment Models, the Pre-Pay or Post-Pay, which shall be specified in the IO. In general, to every new Publisher, the Company offers the Post-Pay Model, however, the Company has the right to decide at its own discretion if a Publisher is eligible for a Pre-Pay Model based on Company’s sole evaluation of the quality of the traffic redirected from the Publisher’s Website(s) towards the Advertiser’s Website(s), taking into account the amount of claims, remarks or comments the Company receives from time to time from the Advertisers. Any specific payment terms shall always be specified in the IO.
Payout Types. The Publisher and the Company shall agree upon several Payout Types, which shall be specified in the IO, like Revenue Share, Flat CPM, Flat Monthly, Floor CPM or otherwise.
For each Advertising Material sold on a Revenue Share basis, the Publisher and the Company agree that in consideration for the Company performing the services as described in this Agreement, the Company shall retain Company’s part of the percentage of the Net Billings generated from the sale of the Advertising Material on the Publisher’s Website(s), and pay the Publisher’s share of Net Billings, within fifteen (15) or thirty (30) days of the end of the month in which advertising revenue is received by the Company from the Advertisers, or otherwise as set forth in the IO.
Taxes. The Advertiser’s payments to the Company that are specific to distribution of Advertiser’s Advertising Material via Publisher websites and other digital media owned by Publishers are made by the Company on behalf of the Advertiser. These payments shall be considered for all purposes to be by the Advertiser to the Publisher. The Company’s relationship with Advertiser with respect to these amounts is solely as paying agent of the Advertiser. The Company accepts no responsibility and claims no responsibility for withholding of any taxes related to such Net Billings of the Publisher.
The Advertiser represents that Net Billings remitted to the Company are net of all and any applicable withholding taxes and that the Advertiser is responsible for any such withholding of taxes associated with the Publisher’s share of Net Billings resulting from the Advertiser’s payments.
By participating in the service, the Publisher assumes complete and sole responsibility for any and all taxes owed as a consequence of participation in the services described hereto.
If the Publisher resides in the United States, the Publisher agrees to provide its Federal Employee Identification Number and/or Social Security number to the Company for tax reporting purposes (i.e. Form 1099). Such information will be used for no purpose other than for tax reporting purposes.
If the Publisher resides outside of the United States, the Publisher agrees to complete any information requests which may be required for local tax purposes in any relevant jurisdiction or for any governing body.
Adjustments. At the end of the monthly billing period, adjustments may be made to the Publisher’s payments due to Advertiser discrepancies, rate changes, or traffic fraud. These Adjustments are calculated and applied to the Publisher by the Company at their reasonable good faith direction.
Advertising Material Delivery. The Company does not guarantee any given level of circulation, distribution, reach or readership for any Advertising Material. In the event the Publishers are unable to deliver the quantity of impressions contracted for within the time specified in the IO, then the campaign will continue until the contracted-for quantity of impressions is served.
Rejection of Advertising Material. The Company reserves the right, without any liability whatsoever, to reject, omit or exclude any Advertising Material for any reason at any time, with or without notice to the Advertiser, and whether or not such Advertising Material was previously acknowledged, accepted or published.
No Exclusivity. The Advertiser expressly acknowledges that the Company may represent other advertisers and agencies and may secure the placement and exhibition of the Advertising Material, in a similar capacity to that contemplated hereunder, and nothing contained herein shall be construed to limit Company’s right to do so.
Publisher Requirements. To enable the Company to maximize the advertising revenue for the Publisher’s Website(s), the Publisher agrees to, at minimum, work with the Company to ensure the quality of inventory that is allocated for sale. This may include adding and/or removing ad code tags and ad unit sizes with prior approval of the Publisher. For purposes of this agreement, “above the fold” shall mean that, a visitor to the Publisher’s Website can view the Advertising Material without the visitor having to scroll down the page.
Ad Code Tagging of Web Pages. The Publisher agrees to code the pages of the Publisher’s Website(s) with the ad code provided by the Company within five (5) business days of Publisher’s receipt of such ad code (hereafter “Ad Code“). During the term of this Agreement, the Publisher agrees to maintain on the Publisher’s Website(s) all Ad Code necessary for the Company to serve Advertising Material. If the Publisher approves any other form of Advertising Material that requires the Publisher to add additional Ad Code or make other modifications to its Publisher’s Website(s), or otherwise to change the Publisher’s advertising practices, the Publisher agrees to take such required actions promptly and diligently. If at any time the Company requests that Publisher remove or alter certain Ad Code for any reason, the Publisher agrees do so within twenty-four (24) hours, and send an electronic mail confirmation to the Company upon such removal or alteration.
Traffic Reports to Advertisers. The Company will report traffic to the Advertiser in a manner and on a schedule determined by the Company unless otherwise requested in writing by the Advertiser and agreed to in writing by the Company. The payment to the Company shall be due and payable at the rate and full amount provided in the Order, based upon the measurement criteria (e.g. impressions, etc.) as reported to the Advertiser by the Company.
Traffic Reports to Publisher. The Company will report traffic to the Publisher in a manner and on a schedule determined by the Company unless otherwise agreed upon by the Parties in writing, provided the Company provides traffic reports no less than once per month. The Payment to the Publisher shall be due and payable at the rate and full amount provided for herein, based upon the measurement criteria (e.g. impressions, etc.) as reported to the Publisher by the Company.
INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
Intellectual Property. The Company’s Website(s) and their original content, features, functionality and design elements, as well as all Intellectual Property Rights related to these websites, are and will remain the exclusive property of the Company or are licensed to the Company by third parties.
The Company grants you a fully paid-up, worldwide, non-exclusive, non-transferable, revocable license to use the Company’s services and access the Network solely in accordance with the terms of this Agreement. The Company’s Intellectual Property Rights may not be used in connection with any product or service without Company’s prior written consent. You may not sub-license, assign or otherwise transfer the rights granted.
The Publisher’s Website(s) and all Intellectual Property Rights related to these websites are the ownership of the Publisher or the Publisher has been granted license to use them.
The Advertiser’s Website(s) and all Intellectual Property Rights related to these websites (including Intellectual Property Rights in and to the Advertising Material) are the ownership of the Advertiser or the Advertiser has been granted license to use them.
The Company is a service provider and has no effective knowledge about the content in the Publisher’s Website(s) and/or the Advertising Material created by the Advertiser(s), which is published on the Publisher’s Website(s).
The Publisher and the Advertiser are the only responsible parties for such content and will always hold the Company harmless from any responsibility, infringement, damage or loss in relation to such content. If any content is illegal or violates any law in general, and in particular, any Intellectual Property Rights laws, please request the removal to [email protected], so that the Company can remove and prevent access to it.
License granted by Advertiser. By signing up an Order, the Advertiser hereto authorizes the Company and the Publisher to use the Advertiser’s tradenames and/or trademarks and/or other necessary identifiers whether graphic, visual or otherwise with regard to the Advertising Materials only for the purposes of executing this Agreement without any further written approval from the party owning such name or trademark. The Advertiser agrees to grant us a fully paid-up, non-exclusive, royalty-free, non-transferable license to copy and modify any Advertising Material for the term of the Agreement for the purpose of providing the services to you.
Proprietary Rights. The Publisher hereby grants to the Company a worldwide, non-exclusive, royalty-free license to collect and use for Company’s business purposes non-personally identifiable information gathered by the Company in connection with ad delivery to the Publisher’s Website(s), including, without limitation, click-stream information.
You agree not to disclose Company’s Confidential Information without Company’s prior written consent. “Company’s Confidential Information” includes without limitation:
- All Company’s software, technology, programming, technical specifications, materials, guidelines and documentation you learn, develop or obtain that relate to the Network;
- Click-through rates or other statistics provided to you by the Company; and
- Any other information designated in writing by the Company as “confidential” or any designation to the same effect.
The Company’s Confidential Information does not include information that has become publicly known through no breach by you, or information that has been (i) independently developed without access to the Company Confidential Information, as evidenced in writing; (ii) rightfully received by you from a third party without such third party having possession of such Company’s Confidential Information because of its own or other’s breach; or (iii) required to be disclosed by law or by a governmental authority.
The Publisher, in addition, acknowledges that the Company may be ordered by a Court or Administrative Authority to disclose information regarding the services being provided to the Publisher or to disclose Publisher’s identity under certain circumstances, especially where the Publisher’s Website(s) contain unauthorized copyrighted materials and/or link(s) to such unauthorized copyrighted materials. The Company will be fully entitled to disclose such information upon receiving a request for disclosure from a Court or Administrative Authority, which the Company reasonably deems as being competent to issue such a request.
DATA PROTECTION AND COOKIES
Each Party undertakes to comply with its respective obligations under the applicable data protection laws applicable to controllers, including, but not limited to the EU General Data Protection Regulation 2016/679 (“GDPR”), the e-Privacy Directive 2002/58/EC (as amended and replaced from time to time), their national implementing legislations and any applicable codes of practice and best practice guidance issued by the relevant authorities (the “Data Protection Laws”).
Each Party will provide the other Party any cooperation reasonably requested to enable the other Party’s compliance with this clause and with the Data Protection Laws.
The Publisher shall be responsible and undertakes to collect the consent(s) of the visitors of the Publisher’s Website(s) (including, without limitation, as regards to the placement of cookies), where required to comply with Data Protection Laws.
In respect of any processing under this Agreement for which the Company and the Publisher or/and the Advertiser are joint controllers, each party will provide the other party any cooperation reasonably requested to enable the other Party’s compliance with the Data Protection Laws.
Personnel. Each party shall take reasonable steps to ensure the reliability of any employee, agent or contractor who may have access to Personal Data, ensuring in each case that access is (i) strictly limited to those individuals who need to know and/or access the relevant Personal Data; and (ii) as strictly necessary for the purposes of this Agreement and to comply with the Data Protection Laws in the context of that individual’s duties.
Each party shall ensure that all individuals referred to in this clause are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
Security and Confidentiality of Data. Each Party shall in relation to the Personal Data, implement appropriate technical and organizational measures to ensure an appropriate level of security, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In doing so, each party shall take into account (i) the state of the art, the costs of implementation and the nature, scope, context and purposes of processing; and (ii) the risk of varying likelihood and severity for the rights and freedoms of natural persons.
In assessing the appropriate level of security, each party shall in particular take into account the risks that are presented by the processing activities, including any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed.
Data subject rights. Each Party shall fulfil their obligations to respond to requests to exercise data subject rights under the Data Protection Laws.
The Publisher and the Advertiser will provide the Company any cooperation reasonably requested to enable Company’s compliance with this clause.
The Company will provide the Publisher and/or the Advertiser any cooperation reasonably requested to enable the Publisher and/or the Advertiser’s compliance with this clause.
Processors. With respect to a proposed processor, each party shall:
- before the processor first processes Personal Data, carry out adequate due diligence to ensure that the processor is capable of providing the level of protection for Personal Data required by the Data Protection Laws; and
- ensure that the arrangement with such a processor, is governed by a written contract including terms that meet the requirements of Article 28(3) of the GDPR.
Personal Data Breach.
The Publisher and/or the Advertiser shall:
- notify the Company without undue delay and in any case no later than twenty four (24) hours upon becoming aware of a personal data breach affecting Personal Data (“Data Breach”);
- provide the Company with sufficient information to allow it to meet any obligations to report or inform data subjects under or in connection with the Data Protection Laws;
- meaningfully consult with the Company in respect of the external communications and public relations strategy related to the Data Breach;
- not issue a press release or communicate with any member of the press in respect of the Data Breach, without having obtained prior written approval of the Company.
The Company shall:
- notify the Publisher and/or the Advertiser without undue delay upon becoming aware of a personal data breach affecting Personal Data (“Data Breach”);
- provide the Publisher and/or the Advertiser with sufficient information to allow it/them to meet any obligations to report or inform data subjects under or in connection with the Data Protection Laws;
- meaningfully consult with the Publisher and/or the Advertiser in respect of the external communications and public relations strategy related to the Data Breach;
- not issue a press release or communicate with any member of the press in respect of the Data Breach, without having obtained prior written approval of Publisher and/or the Advertiser.
The notification set out in this clause shall as a minimum:
- describe the nature of the Data Breach, the categories and numbers of data subjects concerned, and the categories and numbers of Personal Data records concerned;
- describe the likely consequences of the Data Breach; and
- describe the measures taken or proposed to be taken to address the Data Breach.
The Publisher and the Advertiser shall cooperate with the Company and take such reasonable commercial steps as are directed by it to assist in the investigation, mitigation and remediation of each Data Breach.
Retention and deletion. The Parties shall not retain or process any Personal Data disclosed by any of the other Parties for longer than is necessary in order to carry out their respective obligations under this Agreement, except where their retention is required in order to comply with any statutory or professional retention periods applicable in their respective countries and/or industry.
INDEMNIFICATION AND LIMITATION OF LIABILITY
Indemnification. You agree to indemnify, defend and hold harmless the Company and its parent, subsidiaries, successors, shareholders, assignees, related companies, affiliates, and their respective directors, officers, employees, agents and subcontractors, from and against any and all third party claims, causes of action, costs, expenses and damages, judgement or liability, threatened or adjudicated, of any kind (including, without limitation, reasonable attorney’s fees and expenses, settlement costs and disbursements) incurred by the Company, arising out of or in connection with:
- any breach or default by the Advertiser and/or the Publisher (as the case may be) in the performance of any of its respective obligations (including, without limitation Taxes) under this Agreement;
- any breach by the Advertiser and/or the Publisher (as the case may be) of any representation, warranty, covenant or agreement;
- any transaction with end-users, including without limitation any purchases by such users of products or services sold on the Advertiser’s and/or Publisher’s Website(s), or any other operation which occurs on said websites and which is not related to the Company’s services hereto;
- Any breach of the “Data Protection and Cookies” clause hereto, caused by your act or omission or of one of your employees, agents or contractors (including processors);
- Advertiser’s and/or Publisher’s non-compliance with the provisions of the Data Protection Laws.
The Parties’ indemnification obligations shall survive termination or expiration of this Agreement. The indemnifying party shall give prompt written notice to the indemnified party of any third-party claim under this section.
Limitation of Liability. The Company makes no warranties of any kind, whether express or implied, as to the subject matter of this Agreement, including any warranty of merchantability or fitness for a particular purpose.
The Advertiser agrees that the Company shall not be liable for:
- Any delays in the delivery and/or non-delivery of any Advertising Material placement;
- Anything affecting the production of an Advertising Material placement in the event of an act of God, action by any government entity, network difficulties, electronic malfunction or any condition beyond the control of Company;
- Consequential damages of any nature whatsoever; and/or
- Errors or omissions in the Advertising Material as it is exhibited to the public.
The Advertiser agrees that the Company and the Publisher shall not be liable for:
- Any actions or omissions of any Advertiser in connection with such Advertiser’s utilizing any advertising space on the Publisher’s Website(s);
- The content of any Advertising Material;
- Any unavailability or inoperability of the Internet, technical malfunction, computer error, corruption or loss of information.
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
IN NO EVENT WILL THE COMPANY’S LIABILITY HEREUNDER TOWARDS THE ADVERTISER EXCEED THE PAYMENTS MADE BY THE ADVERTISER DURING THE PRECEDING TWELVE (12) MONTHS.
IN NO EVENT WILL THE COMPANY’S LIABILITY HEREUNDER TOWARDS THE PUBLISHER EXCEED THE PAYMENTS MADE BY THE COMPANY TO THE PUBLISHER DURING THE PRECEDING TWELVE (12) MONTHS.
MODIFICATIONS OF THIS AGREEMENT
If the Company changes the terms of this Agreement, it will post an updated set of terms and conditions on its website and/or will post a change notice and/or send an email notice to its clients (Publishers and Advertisers) regarding the changes in advance of implementing these changes.
If any modification is unacceptable to you then you shall immediately terminate this Agreement and all Orders and/or IOs placed on or through the Network. If you do not cease this contractual relationship with the Company, you will be conclusively deemed to have accepted the changes, to be bound by them, and that you have read and understood them.
ASSIGNMENT OF THIS AGREEMENT
The Company is hereby authorized to assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party provided that the assignee shall assume all rights and obligations under this Agreement.
The Publisher and the Advertiser shall not assign, sublicense, delegate or otherwise transfer any of their rights or obligations under this Agreement, however, the Publisher and the Advertiser may, without the consent of the Company, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all Publisher’s or Advertiser’s (as the case may be) assets or stock, provided that the assignee shall assume in writing all rights and obligations under this Agreement.
The Company may at any time, in its sole discretion, immediately terminate this Agreement and/or any ads campaign with or without cause. The Company will make commercially reasonable efforts to notify you via e-mail of any such termination within a reasonable period.
The Company shall have the right to terminate this Agreement immediately and without notice if you do not fulfill a material obligation defined in this Agreement.
If the Company does not fulfill a material obligation defined in this Agreement, you have the right to terminate this Agreement sixty (90) days following written notice to the party in breach, provided that such material breach remains uncured, without prejudice of the right to claim the damages caused to the non-breaching party.
During the term of this Agreement, and any renewal thereof, and for six (6) months after its termination for any reason, the Advertiser agrees that it will not do business directly or indirectly with any Publisher listed on the Network (if Advertising Material of the Advertiser have been published on such Publisher’s Website), or directly or indirectly solicit or induce such Publisher to do business directly with the Advertiser, unless their relationship pre-dated the relationship between the Company and the Advertiser. The Advertiser understands and agrees that this prohibition is a key consideration and inducement for the Company to enter into this Agreement with the Advertiser, and to provide the services hereunder.
APPLICABLE LAW AND JURISDICTION
The Parties agree that this Agreement will be construed in all respects in accordance with the laws of the State of California applicable to agreements entered into and to be wholly performed therein, and, in the event of any dispute related to the subject matter of this Agreement, the Parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts located in the State of California, Los Angeles County.
Force Majeure. Except for payment obligations, if either party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (each, a “Force Majeure Event”), such party’s performance shall be excused and the time for performance shall be extended accordingly provided that the party immediately takes all reasonably necessary steps to resume full performance. If such party remains unable to resume full performance fifteen (15) days after the Force Majeure Event, the other party may terminate this Agreement upon written notice.
Notice. All notices and approvals desired or required to be given to either party hereunder shall be in writing and shall be deemed given when delivered via (i) certified mail, return receipt requested, all charges prepaid, (ii) Federal Express, UPS One-Day Service, or other similar overnight courier service, with proof of sending, or (iii) hand delivery, with acknowledgement of receipt, transmission, in each case to the other party’s address.
Severability. If any term or provision of this Agreement is declared illegal, invalid or unenforceable, the Parties intend that the remainder of this Agreement shall not be affected thereby and that, in lieu of any such stricken provision, there shall be added as a part hereof, a substitute provision as similar in substance to the illegal, invalid or unenforceable term or provision as may be possible.
Survival. The clauses “Termination”, “Confidentiality”, Data Protection and Cookies”, “Indemnification and limitation of liability”, “Modification”, “Non-Solicitation” and “Applicable Law and Jurisdiction” shall survive the termination or expiration of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination.
No Partnership. Nothing contained in this Agreement shall be construed to constitute a partnership or joint venture or any other fiduciary relationship. Neither party is the employee, agent, partner or joint-venturer of the other, it being understood and agreed that the relationship of the Parties is that of independent contractors.
Defaults. No delay or failure by either party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the party waiving its rights. No waiver by either party of any default hereunder shall constitute a waiver by such party of any subsequent default, whether such subsequent default is similar in nature to any previously waived default. All remedies under this Agreement or under law or otherwise shall be cumulative and not alternative.
Remedy at Law. In the event of any dispute arising out of or relating to this Agreement or the Order, Advertiser’s sole remedy shall be an action for damages at law. ADVERTISER EXPRESSLY WAIVES AND/OR AGREES NOT TO EXERCISE ANY AND ALL EQUITABLE RIGHTS THEY MAY HAVE HEREUNDER, INCLUDING WITHOUT LIMITATION ANY RIGHT TO ENJOIN, RESCIND, TERMINATE OR OTHERWISE INTERFERE WITH COMPANY’S DELIVERY, PLACEMENT AND EXHIBITION OF ANY ADVERTISING MATERIAL WHATSOEVER.
Legal Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the Company shall be entitled to reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may be entitled.
Entire Agreement. This Agreement, coupled with the Order and/or IO, if any, is intended by the Parties hereto as a complete and final expression of their agreement and understanding with respect to the subject matter hereof.
Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.