AdAction Interactive, LLC
Master Terms and Conditions for Advertising Sales
The following Terms and Conditions (the “T’s and C’s”), together with the insertion order (the “IO”), shall govern all advertising campaigns (“Campaigns”) that are conducted by AdAction Interactive, LLC (hereunder “AdAction Interactive”), for the entity identified on page one (1) of the IO and the signature page (“Company”). These T’s and C’s will govern any and all other IOs subsequently executed by AdAction Interactive. These T’s and C’s supersede and replace any and all prior agreements entered into by and between AdAction Interactive and Company pertaining to the subject matter hereof and shall control all extant IOs. Terms not defined in these T’s and C’s shall have the meanings set forth in the IO. All subsequently executed Insertion Orders and these T’s and C’s may be collectively referred to herein as the “Agreement”). This Agreement represents the entire agreement of the parties and may not be modified unless expressly agreed to in writing by both parties.
1. Advertising Services.
AdAction Interactive will provide advertising services (collectively the “Services”), upon the terms and subject to the conditions that AdAction Interactive may designate from time to time in an IO. All such Services shall be subject to these T’s and C’s. AdAction Interactive shall perform the Services as described herein and/or may use a Network to perform such Services (the “Network”). The Network may consist only of the affiliated publishers (collectively the “Publishers”) that maintain their own proprietary websites, internet traffic and/or legal email databases derived from ordinary course activities as a publisher (i.e. no rented or shared databases)
2. Company’s Creative and Web Site
2.1. Creative. Company will provide AdAction Interactive with the creative materials for the Ads and/or Campaigns, including product/service descriptions, graphic images, logos, and copy (the “Copy”), at least five (5) days prior to AdAction Interactive’s posting of such Ads and/or Campaigns.
2.1.1. To the extent the Campaign involves E-Mails, the Copy shall also include subject and from lines, offer description (in text and html formats), a functional unsubscribe link, terms and conditions (if applicable), and any other information necessary to comply with all applicable state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003 (the “Act”). Company will submit changes or cancellations of any creative materials in writing to Company at least ten (10) business days in advance of requested change date.
2.2. License. Company grants AdAction Interactive and its Publishers a non-exclusive license to use, reproduce, publicly and digitally display and perform, transmit and broadcast Company’s name, logos, trademarks, trade names, service marks, URLs and slogans to display, market, promote and publicize Ads on the Service, and on AdAction Interactive’s web sites, and for the purpose of including Company in AdAction Interactive’s marketing and promotional materials. Company further grants to AdAction Interactive and its Publishers a personal, non-exclusive, revocable, non-transferable, limited license to all intellectual property rights, owned or controlled by Company (including but not limited to copyrights, trademarks, and service marks) solely to the extent that such license is required for performance of the Service in accordance with this Agreement. Such License shall terminate immediately upon termination, for any reason, of all IOs then in effect.
2.3. Company Web site. Company shall make best efforts to keep the Company’s web site generally available 24 hours a day, 7 days a week, to ensure that a third party user’s purchase, registration, lead and any other action related to the Ad and/or Campaign (“User Action”) may be processed on a timely basis. Company must notify AdAction Interactive at least one (1) week in advance for any scheduled downtime so that AdAction Interactive has adequate time to notify Publishers who are actively engaged in running the applicable Ads and/or Campaigns.
2.4. CPA Tracking. With respect to all cost per acquisition (“CPA”) and cost per lead (“CPL”) campaigns, Company will provide AdAction Interactive with unique tracking links (URLs) that will record the origin of each user action including impressions, clicks and sales by unique tracking link. Company will allow AdAction Interactive online access to the statistics regarding such User Actions by unique tracking link. Company will ensure AdAction Interactive’s tracking methods are in place and functioning at all times. Company will provide access to records as they become available that will allow AdAction Interactive to monitor the volume of User Actions it has generated.
2.5. CPM and CPC Tracking. With respect to all other Campaigns, including cost per impression (“CPM”), cost per click (“CPC”) and co-registration campaigns, AdAction Interactive shall be solely responsible for calculating the user actions that comply with the terms of the applicable IO.
2.6. Suppression Lists. To the extent that Company receives, via E-Mail, website or other media, a message from a third party user that such user wishes to unsubscribe or opt out of receiving any Ads and/or Campaigns, Company is required to provide AdAction Interactive with a suppression list of such opt-outs and unsubscribes (“Suppression List”) no more than forty-eight (48) hours after receiving such transmission from third party user. AdAction Interactive shall make the Suppression List available to the Publishers in its network.
3.1. Payment Obligations. Company is obligated to pay AdAction Interactive in accordance with the pricing specified in each I/O. If not specified otherwise, payment shall be prepaid before the start of the campaign and during the term of the campaign. AdAction Interactive may invoice Company, but payment by Company is not contingent upon receiving AdAction Interactive’s invoice. In the event Company fails to pay within five (5) days after payment is due, all outstanding charges shall bear interest at the rate of one and a half percent (1.5%) per month or the maximum interest rate permitted under applicable law, whichever is less. Company agrees that if Company does not pay within five (5) days after payment is due either AdAction Interactive or its affiliates may seek to satisfy Company’s payment obligations and to collect such payment. Company further agrees to pay all costs of collection (including court cost and reasonable attorneys fees) incurred by AdAction Interactive and/or its affiliates in connection with its enforcement of any Order. Unless Company objects to AdAction Interactive’s invoice within forty-eight (48) hours, the amount invoiced shall be final and binding. Company may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation. To the extent Company intends to dispute an invoice, Company shall provide a written report to AdAction Interactive, within two (2) business days identifying, in detail, the discrepancies, between the invoiced amount and Company’s evidence. AdAction Interactive may consider such report, but shall have final authority in determining the correct amount.
3.2. Payment Records. Company shall insert tracking pixel on the confirmation page for each Ad to be delivered hereunder. Company will provide AdAction Interactive with a link to the confirmation page where AdAction Interactive can view the pixel for approval prior to initiating the advertising campaign. Payment will be made based on AdAction Interactive’s calculations of the higher of number of leads from the AdAction Interactive or Company statistics based on the tracking pixel. All such records provided by Company shall be the sole property of Company. In the event that the tracking methods employed malfunction or the Company web site is inoperable, for the period in question, a mutually agreed upon payment will be determined.
3.3. To the extent that payments are based on User Action, AdAction Interactive may, in its sole discretion and if requested by the Company, transfer user action data that provides the basis for an invoice to Company.
3.4. Non-Viable Leads. Unless otherwise provided in the IO or Campaign Worksheet, no offsets or chargebacks may be taken for any non-viable or duplicate leads. AdAction Interactive shall determine in its sole discretion what constitutes a non-viable lead. Without limiting the breadth of the foregoing, non-viable leads shall include, but not be limited to, leads with incomplete contact information (no e-mail address, no phone number, no physical address), leads from non-United States citizens, leads from consumers under 18 years of age, etc. It is the responsibility of the Company to insure that the IO or Campaign Worksheet accurately reflects the leads sought.
Unless terminated earlier in accordance with Sections 8 or 13 below, the term during which AdAction Interactive shall provide the Services shall be as set forth in the IO.
5. Representations and Warranties.
5.1. Company warrants and represents at all times that (a) Company has all necessary rights and authority to enter into this Agreement and to grant Company the licenses granted herein, (b) the execution of this Agreement by Company, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which Company is a party or by which it is otherwise bound, (c) the Suppression List Company provides is accurate and complete; (d) the links contained in any Ads and/or Campaigns are directed to the intended and agreed upon destination and are not re-directed; and (e) the Advertisements, the use and display thereof, and the content linked to from such Advertisements will not: (i) infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party, (ii) be misrepresentative, libelous, defamatory, obscene, or otherwise inappropriate, (iii) violate any applicable law or regulation, or (iv) advertise any unlawful product or service or the unlawful sale of any product or service. In the event this Agreement includes E-mail distribution, Company further represents and warrants that it will comply with all aspects of the Act. Further, to the extent that Company has requested that Company create and develop certain Ads, Company acknowledges that been given the opportunity to reject such Ads, and has approved the Ads and accepted all liability connected to such Ads.
5.2. With respect to a Campaign involving E-mails, Company further represents and warrants, that Company has the power and authority to bind itself and any Agency to these representations and warranties; that Company will comply with all aspects of all state and federal laws and regulations including but not limited to the CAN-SPAM Act of 2003; and Company will not submit a Campaign for transmission of any E-mail: (a) with a “from line” that is materially false or misleading and does not accurately identify the person sending the E-mail; (b) with a subject line that is misleading, false or misrepresentative or is likely to mislead the recipient about the content of the E-mail; (c) that does not include a clear and conspicuous identification that the E-mail is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid physical postal address of the Company and Publisher; or (d) with any content that (i) infringes or violates any intellectual, proprietary or privacy rights; or (ii) is misrepresentative, defamatory or violates any applicable law or regulation. Company also represents and warrants that it will not transmit a Campaign including an E-mail to any individual that has requested not to receive any E-mails more than five (5) days after receipt of such request, provided that the E-mail falls within the scope of the request.
6. Disclaimer of Warranties.
ADACTION PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES AND PUBLISHERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES AND PUBLISHERS, AS PERFORMED HEREUNDER, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. WITHOUT LIMITING THE FOREGOING, ADACTION DOES NOT WARRANT OR GUARANTEE THE SUCCESS OF ANY AD, THE NUMBER OR QUALITY OF LEADS GENERATED FROM THE AD, OR THE AMOUNT OF SALES OR REVENUE TO BE DERIVED BY CUSTOMER FROM THE ADS. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, ADACTION’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. ADACTION DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
Each party represents and warrants that it shall provide notice for, and fully disclose, its privacy policies and practices to visitors to its web site(s), including its policies and practices with respect to the collection of information on persons who may visit its website(s). Both parties reserve the right to terminate this Agreement immediately, at any time after the start of the Campaign by providing not less than forty-eight (48) hours prior written notice to the other party, upon inspection of the other party’s privacy statement and the party’s reasonable determination that said privacy statement does not adequately disclose the party’s information use and collection practices.
8. Limitation of Liability.
EXCEPT FOR INDEMNTIY OBLIGATIONS UNDER SECTON 11, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR INDEMNTIY OBLIGATIONS UNDER SECTON 11 AND AMOUNTS OWED BY CUSTOMER UNDER SECTION 3, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTIES FOR AN AMOUNT OF DAMAGES GREATER THAN THE TOTAL AMOUNTS PAID BY CUSTOMER HEREUNDER FOR THE SIX MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. IN LIEU OF PAYING DAMAGES, ADACTION SHALL BE GIVEN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED TO PROVIDE CUSTOMER WITH A SUBSTITUTE AD PLACEMENT.
10. Confidential Information.
“Confidential Information” shall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. The identity of AdAction’s affiliates and publishers (collectively, the “Publishers”) are Confidential Information of AdAction, including those Publishers recruited for the Customer through AdAction’s outreach efforts. Neither Customer nor AdAction shall disclose or use the other party’s Confidential Information for any purpose other than the purposes contemplated by this Agreement, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party’s Confidential Information to the extent required by applicable law, but only after five (5) days prior written notification to the other party of such required disclosure. Upon termination, cancellation or expiration of this Agreement for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed. Customer’s Confidential Information shall remain the property of Customer, and AdAction’s Confidential Information shall remain the property of AdAction. To protect the proprietary nature of AdAction’s Publishers, Customer hereby agrees to work exclusively with AdAction for all advertising placed, directly or indirectly, through Publishers disclosed by AdAction to Customer. (indirect placement includes Customer placing the ad with a third party and the third party or its agents then placing the ad with Publishers). The exclusivity provisions shall apply during the entire term of this Agreement and for a period of 90 days thereafter (but shall not apply to any Publisher with whom Customer has a previously existing and documented business relationship).
11.1 Company agrees to indemnify, defend and hold harmless AdAction Interactive, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, liabilities, suits, proceedings, settlements, expenses, liens, injury or damage (including reasonable attorneys’ fees and expert’s fees and costs) resulting from but not limited to claims of tort, false advertising, intellectual property infringement, or actions that may at any time be incurred, arising out of or in connection with the Ads or Company’s breach of this Agreement.
11.2 AdAction Interactive agrees to indemnify, defend and hold harmless Company, its vendors and suppliers, the publishers, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, liabilities, suits, proceedings, settlements, expenses, liens, injury or damage (including reasonable attorneys’ fees and expert’s fees and costs) resulting from claims or actions that may at any time be incurred, arising out of or in connection with the AdAction Interactive’s breach of this Agreement.
11.3 Indemnity Procedures.
If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.
11.4 Notwithstanding the foregoing, if any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Section
11.5 Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable. A “Related Party” is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.
12. Notification of Legal Action by a Third Party
Notification of Legal Action. Company will immediately notify AdAction Interactive of any current, impending, or potential legal action against it by a third party for matters relating to email, email complaints, email deployment, and violations of CAN-SPAM.
This Agreement shall have a term commencing upon execution of this Agreement and continuing thereafter until (1) all IO’s have expired or terminated pursuant to their respective terms, and (2) either party gives the other party 10 days prior written notice of its election to terminate this Agreement (which may be given without cause or reason).
14. Proprietary Rights.
Company agrees that it does not have, nor will it claim any right, title or interest in the Service, AdAction Interactive’s Site or any underlying technology, software, applications, data, methods of doing business or any elements thereof, or any content provided on AdAction Interactive’s Site (including the Ads). Company will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective AdAction Interactive site tags, source codes, links, pixels, modules or other data provided by or obtained from AdAction Interactive that allows AdAction Interactive to measure ad performance and provide its service. In addition, Company acknowledges that all information, data and reports received from AdAction Interactive as part of the Services are proprietary to and owned by AdAction Interactive. If instructed to do so by AdAction Interactive, Company will immediately destroy and discontinue the use of any such reports or data, and any other material owned by AdAction Interactive or the third party Advertisers.
15. Non-Solicitation with Publishers.
Company will not knowingly (which is defined as “Company having actual and specific knowledge”, and AdAction Interactive acknowledges that Company makes no effort when entering into a relationship with a Publisher to determine if they are or were a AdAction Interactive Publisher) participate in any performance based advertising relationship with any AdAction Interactive Publisher, unless a previously existing business relationship between Company and Publisher can be demonstrated to the reasonable satisfaction of AdAction Interactive. In this connection, both Parties agree and acknowledge that if Company violates its obligations hereunder, AdAction Interactive will be entitled to damages in the amount of twenty-five percent (25%) of the gross revenues resulting from sales conducted by Company through the advertising or marketing efforts of Publisher during the term of this Agreement, and for gross revenues in the three (3) months proceeding the date such violation was discovered by AdAction Interactive and the three (3) months after termination of this Agreement.
This Agreement will be governed and construed in accordance with the laws of the State of Colorado without giving effect to conflict of laws principles. Customer and AdAction agree to submit to exclusive
jurisdiction in Colorado and venue in the courts of Denver County, Colorado. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Neither party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. This Agreement may be executed and delivered by facsimile and the parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures.