TERMS AND CONDITIONS
These Advertiser Terms and Conditions (“Terms”), together with the terms set forth in an applicable insertion order (“IO”) as defined below, shall constitute a legally binding and enforceable agreement (“Agreement”) between Advertiser, its clients and agents (collectively, “Advertiser”) and Ad-Vantage Networks, Inc. (“AdVantage”), a Delaware corporation having a principal business address at 600 North Brand Blvd., Suite 230, Glendale, California 91203.
I. Definitions
“Ad” means any advertisement provided by Advertiser pursuant to this Agreement.
“AdVantage” means the company delivering the Advertising Services to Advertiser under the applicable IO via the AdVantage Network.
“AdVantage Network” means the networks that are owned, operated, and/or controlled by AdVantage Network Providers.
“AdVantage Network Providers” mean the private internet networks, Internet service providers (ISPs), multiple system operators (MSOs), transactional network partners and other web properties specified on an IO that are either owned, operated, and controlled by AdVantage, or owned, operated, and controlled by third parties but on which AdVantage has a contractual right to place Ads via these providers.
“Advertiser” means the advertiser, its clients and/or agents specified on an applicable IO.
“Advertising Materials” means artwork, copy or active URLs for Ads.
“Advertising Services” means the advertising service provided by AdVantage to Advertiser pursuant to the applicable IO and subject to these Terms.
“Agency” means the advertising agency representing Advertiser and listed on the applicable IO.
“Agreement” means the Terms together with an IO, constituting a legally binding and enforceable contract between AdVantage and Advertiser.
“Deliverables” means the inventory delivered by AdVantage, whether sold on a viewable impression, cost per acquisition (“CPA”), cost per click (“CPC”), cost per lead (“CPL”) or cost per thousand impression (“CPM”) basis.
“IO” means a mutually agreed upon insertion order, whether written or online, incorporating these Terms, under which AdVantage will deliver Ads for the benefit of Advertiser.
“Policies” mean advertising criteria or specifications made conspicuously available, such as any content limitations, technical specifications, privacy policies, reasonable standards regarding obscenity and decency, and Advertising Materials due dates.
“Terms” means these AdVantage Networks Advertiser Terms and Conditions.
“Third Party” means an entity or person that is not a party to an IO.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
II. Insertion Orders
a. AdVantage and Advertiser may execute IOs that will incorporate these Terms and under which AdVantage will deliver Ads for Advertiser. The submission of a signed IO by Advertiser to AdVantage shall constitute an acceptance by Advertiser of the Terms and the IO (together, the “Agreement”). Any modifications to the originally submitted IO will not be binding unless approved in writing by both AdVantage and Advertiser.
b. Items that may be included in an IO are types, amounts and price of Deliverable(s), the maximum amount of money spent under the IO, the dates of the campaign, relevant information on any Third Party Ad Server, reporting requirements, Ad delivery scheduling and/or Ad placement requirements.
III. Advertising Materials
a. Advertiser agrees to submit the Advertising Materials to AdVantage no less than 24 hours prior to the IO start date.
b. If Advertising Materials are not received by the IO start date, AdVantage will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on violation of Section III(a), AdVantage is not required to guarantee full delivery of the IO. If AdVantage has received all Advertising Materials in accordance with Section III(a) but it fails to commence a campaign on the IO start date, AdVantage and Advertiser agree to negotiate a resolution.
c.AdVantage reserves the right within its sole discretion to reject or remove from the AdVantage Network any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, including but not limited to any Ad content in violation of reasonable standards of obscenity and decency, or that in AdVantage’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, AdVantage reserves the right within its discretion to reject or remove from the AdVantage Network any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon AdVantage or any of its affiliates. AdVantage’s rights relating to the Ads set forth in this Section shall not be deemed waived by its actual use and/or placement of the Ads.
d. When applicable, Third Party Ad Server tags may be implemented so that they are functional in all aspects.
e. Advertiser will not use the Ads or the trade names, trademarks, or logos of any others in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without any and all authorizations and consents required for such use.
IV. Ad Placement
a. Unless otherwise provided in the IO, AdVantage shall determine in its sole and absolute discretion the placement of the Ad(s) and all operational matters relating to the placement of the Ad(s) on the AdVantage Network, and Advertiser consents to all such placements.
b. Should any Ad be placed by AdVantage on the AdVantage Network in a manner inconsistent with the IO, and Advertiser provides proper notice to AdVantage of such inconsistency in accordance with Section IX, both parties agree to negotiate other solutions for placement of the Ad, which may include AdVantage making commercially reasonable efforts to correct such inconsistency within two business days.
V.Credit Reporting
a. Advertiser hereby acknowledges that AdVantage may, at any time, utilize credit reporting agencies to evaluate the credit history of Advertiser, and Advertiser hereby agrees to provide AdVantage with any necessary information pursuant to said credit evaluation.
VI. Payment
a. The initial invoice will be sent to Advertiser by AdVantage upon completion of the first month’s delivery of the Advertising Services, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Advertiser’s billing address as set forth on the IO and will include information reasonably specified by Advertiser such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO.
b. Advertiser will make payment to AdVantage for the Advertising Services set forth in the IO, and any applicable taxes and or other fees imposed by a governmental entity, no later than 30 days from its receipt of the invoice or as otherwise stated in a payment schedule set forth on the IO. All payments made by Advertiser to AdVantage under the IO are non-refundable.
c. Advertiser will be held solely liable for any failure to meet its payment obligations under this Section, and may be subject to the following:
i. Termination of any active campaigns;
ii. A monthly late payment fee of one and one-half percent (1.5%) of the owing balance, or the maximum late payment fee permitted by law, whichever is higher;
iii. Any and all costs incurred by AdVantage, including reasonable attorney’s fees, to collect any payment amounts owed to it by Advertiser.
d. Advertiser shall submit any dispute regarding the delivery of the Advertising Services, including, but not limited to, any delivery measurement statistics, placement of the Ads, and charges to your account, no later than 10 days following the month during which the dispute arose. Advertiser’s failure to submit a dispute within this specified time period in accordance to the notice requirements set forth in Section IX shall amount to a waiver by Advertiser of all claims relating to such dispute.
e. If Advertiser’s credit is or becomes impaired as set forth in Section V, AdVantage may require payment from Advertiser in advance.
VII. Reporting
a. Advertiser hereby acknowledges that AdVantage, or a Third Party Ad Server approved by AdVantage in writing, shall be responsible for tracking and reporting AdVantage’s delivery of the Advertising Services to Advertiser, and that the measurements and data relating to the Deliverable(s) produced therefrom shall be the only measure thereof .
b. AdVantage, or a Third Party Ad Server approved by AdVantage in writing, will make reporting available as is commercially reasonable, either electronically or in writing, unless otherwise specified in the IO. Reports shall be broken out as defined in the IO, but may be broken out by day and/or by other variables as set forth in the IO.
c. Advertiser understands and acknowledges that campaign overruns may occur from time to time due to unpredictable events within the AdVantage Network. Any overruns of up to and including 5% over the frequency cap of the campaign set forth in the IO shall be considered delivery of the Advertising Services by AdVantage. Accordingly, Advertiser shall be responsible for making payments for these overruns up to the 5% maximum described herein according to the standard payment procedures described in Section IV and at the appropriate measurement of the Deliverables specified in the IO.
VII. Termination
a. Either party may terminate the IO and the Advertising Services upon 15 days prior written notice to the other party, such notice to be provided in accordance with Section IX. Termination of the Advertising Services may be subject to AdVantage’s ability to cancel Ads already in production, in which case the IO shall continue in full force and effect until the completion of the Advertising Services by AdVantage. If Advertiser terminates the IO prior to the end date of the campaign specified in the IO, it shall be responsible for payment in full of any and all work delivered by AdVantage.
b. Termination of the IO shall not affect the Advertiser’s obligations owed under Sections I, VIII, XI, XII, XIII, XIV and XV, or any of Advertiser’s obligations which by implication are intended to survive termination of the IO.
IX. Notices
a. Any and all notice provided by one party to the other under these Terms must be made in writing. Notice will be deemed given as follows:
i. If to AdVantage, as of the date the notice is received by AdVantage by delivery service or certified mail (first class postage prepaid), or confirmed receipt of an email, delivered to AdVantage’s designated account representative specified in the IO.
ii. If to Advertiser, as of the date the notice is received by Advertiser by delivery service or certified mail, or confirmed receipt of an email, delivered to Advertiser’s designated account representative specified in the IO.
X. Force Majeure
a. AdVantage will not be liable for delays in delivery and/or non-delivery under these Terms if such delay or non-delivery is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes.
b. If Advertiser’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Advertiser’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Advertiser will make every reasonable effort to make payments on a timely basis to AdVantage, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.
XI. Indemnification
a. Any and all Ads that have been accepted and published have been done so with the representation that Advertiser is authorized to publish the contents thereof, as specified in Section XIV.
b. Advertiser will defend, indemnify, and hold harmless AdVantage and each of its affiliates, employees, officers, agents, directors and representatives from losses (including, without limitation, reasonable attorneys’ fees) resulting from any claims, proceedings or suits brought by a Third Party resulting from (i) Advertiser’s alleged breach of these Terms (ii) Advertiser’s alleged breach of the IO (iii) Advertiser’s violation of the Policies, or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by AdVantage in accordance with these Terms or an IO.
c. Advertiser will not acquiesce to any judgment or enter into any settlement which imposes any obligation or liability on AdVantage without its prior written consent.
XII. Limitation of Liability
a. ADVANTAGE SHALL NOT BE LIABLE TO ADVERTISER OR ANY OF ITS AFFILIATES FOR ANY SPECIAL, INDIRECT OR INCIDENTAL DAMAGES OR LOST PROFITS BASED ON ANY CLAIM OF ANY TYPE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADVANTAGE’S TOTAL OBLIGATIONS AND/OR LIABILITY SHALL NOT EXCEED THE CHARGES FOR THE ADVERTISING SERVICES UNDER THE IO. ADVANTAGE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
XIII. Non-Disclosure and Data Use
a. Advertiser understands that AdVantage has disclosed or may disclose confidential information relating to AdVantage’s business, including without limitation proprietary business information of Third Party companies, networks, analysis and performance information, user documentation, mode of operation and other details of its products and services, which to the extent previously, presently, or subsequently disclosed to the Advertiser is hereinafter referred to as “Proprietary Information” of AdVantage.
b. In consideration of any access Advertiser may have to Proprietary Information of AdVantage, and other good and valuable consideration, Advertiser hereby agrees agrees (i) to hold AdVantage’s Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information, (ii) not to divulge any such Proprietary Information or any information derived therefrom to any Third Party including, but not limited to, any affiliated entity, (iii) not to make any use whatsoever at any time of Proprietary Information except to evaluate a potential business relationship or other transaction with AdVantage. AdVantage agrees that the foregoing clauses (i), (ii), (iii) and (iv) shall not apply with respect to any information that Advertiser can document (a) is or (through no improper action or inaction by Advertiser or any affiliate, agent, consultant or employee) becomes generally available or known to the public, or (b) was rightfully in its possession or known by it prior to receipt from AdVantage, or (c) was rightfully disclosed to it by a third party having no obligation of confidentiality, or (d) was independently developed without use of any Proprietary Information of AdVantage.
c. Unless authorized by AdVantage, Advertiser will not use the following data for the purposes of retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO:
i. Details set forth in the IO associated with AdVantage, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information;
ii. Data regarding a campaign gathered during delivery of an Ad pursuant to the IO; or
iii. Data that is pre-existing AdVantage data used by AdVantage pursuant to the IO, gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of AdVantage, the AdVantage Network, related websites, brand, content, context, or users as such, and/or entered by users on any AdVantage Network website. This Section XIII(c)(iii) does not include personally identifiable information collected from individual users by AdVantage during delivery of an Ad pursuant to the IO where it is expressly disclosed to such users that collection is solely on behalf of Advertiser.
d. Advertiser acknowledges and agrees that due to the unique nature of AdVantage’s Proprietary Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Advertiser or Third Parties to unfairly compete with AdVantage resulting in irreparable harm to AdVantage, and therefore, that upon any such breach or any threat thereof, AdVantage shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
e. These Terms do not grant any ownership or other rights to Advertiser under any patent, copyright or other intellectual property right of AdVantage or the AdVantage Network, or in the Proprietary Information, except as expressly set forth herein.
f. Advertiser will at all times comply with all federal, state and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
XIV. Representations and Warranties
a. Advertiser represents and warrants the following:
i. It has all rights and authority required to enter into the IO and these Terms and to perform its obligations in accordance with each;
ii. It has the licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies;
iii. Any information or data it provides under the IO and these Terms is accurate and not false or misleading;
iv. It will not produce, generate, or direct another party to produce or generate, any fraudulent actions (e.g. invalid viewable impression, CPA, CPC, CPL or CPM data) pursuant to the IO or otherwise engage in improper activities, as determined in AdVantage’s sole discretion;
v. It acknowledges and understands that all Ads placed by AdVantage pursuant to the IO are placed on the AdVantage Network and that all AdVantage Network Providers are obligated to notify their users of the delivery of the Ads in such a manner as described in these Terms;
vi. It acknowledges and understands that the Ads will be displayed in existing advertisement locations on the AdVantage Network after the delivery of the existing advertisement meets the Interactive Advertising Bureau’s (IAB) standard for an advertisement impression, potentially being displayed in some cases in a location where Advertiser’s own existing advertisement(s) not specified in the IO were being displayed, and may also be displayed in other locations on the screen that do not cover or obscure any of the published content; and
vii. It grants AdVantage all rights necessary to provide the Advertising Services pursuant to the IO.
XV. Miscellaneous
a. In the event that any of the provisions of the Terms shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect.
b. These Terms shall be governed by the laws of the State of California without regard to the conflicts of law provisions thereof and the parties consent to the exclusive jurisdiction and venue of the state and federal courts located in the State of California and County of Los Angeles.
c. These Terms supersedes any and all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. Advertiser shall not assign these Terms without AdVantage’s prior written consent. AdVantage may modify these Terms from time to time by posting the modified Terms on its website, and Advertiser’s continued receipt of the Advertising Services under the IO following such modification(s) shall serve as an acceptance of the revised Terms. No failure or delay by AdVantage in enforcing any right will be deemed a waiver.
d. The prevailing party in any action to enforce these Terms shall be entitled to costs and fees (including attorneys’ fees and expert witness fees) incurred in connection with such action.
e. Any individual executing these Terms on behalf of a corporation or other legal entity personally represents that he or she is duly authorized to execute these Terms on behalf of such entity and that these Terms are binding upon such entity.