ADVERTISING SERVICES AGREEMENT
Terms and Conditions – US Clients
These terms and conditions govern the services to be provided by Maxy Media Inc. (“Company”), including the creation, delivery and placement of advertising (“Ad”) to each Advertiser from whom Company has accepted an Insertion Order (“IO”) and whose address is in the United States of America. The IO and these terms and condition are collectively referred to as this “Agreement”.
1. Terms of Agreement. The term of this Agreement commences on the date Company accepts an IO and terminates on the date set forth in the IO or, if no termination date is provided, on notice in accordance with this Agreement.
2. Advertisements; Restrictions and Conditions. (i)As used herein, “Ad” and advertisements and similar expressions mean and include, without limitation, the banners, buttons, clicks, co-registrations, emails, audio and video files, content, text, graphic files and similar media and or data described in the IO. (ii) The services and content produced by and performed by Company pursuant to the IO including discoveries, inventions, know-how, technology, plans, writings, drawings, graphics, concepts, finished and unfinished outlines, drafts, notes, printed materials, designs, models, processes, software, and all evidence and physical embodiments thereof (collectively referred to as the “Work Items) shall be the exclusive property of Company. Company shall have full and complete ownership rights to use, license and sell any and all of the Work Items in any manner determined by Company, in Company’s sole discretion, in the United States and any and all territories and foreign jurisdictions.
3. Payment. Advertiser agrees to pay Company for all advertising published by Company on a CPA, CPC, or CPM basis in accordance with the terms of the IO. All payments made pursuant to the IO shall be denominated in US Dollars and shall be made by Advertiser’s company check or by other means expressly agreed to in writing by Company. Advertiser shall also be responsible for and shall pay any applicable sales, use and other taxes or duties, tariffs or the like applicable to provision of the services rendered (except for taxes on Company’s income). Unless otherwise stated, Advertiser shall remit payment to the Company on each invoice within seven (7) days of receiving the invoice. All payments not made by the Advertiser before or on the 7th day after receipt of the invoice. In the event Advertiser fails to pay within ten (10) 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. Advertiser agrees that if Advertiser does not pay within ten (10) days after payment is due Company may seek to satisfy Advertiser’s payment obligations and to collect such payment. The Advertiser further agrees to pay all costs of collection (including court cost and reasonable attorney’s fees) incurred by Company in connection with its enforcement of any Order. Unless Advertiser objects to Company’s invoice within forty-eight (48) hours of receipt of the invoice, the amount invoiced shall be final and binding. Advertiser may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation. To the extent Advertiser intends to dispute an invoice, Advertiser shall provide a written report to Company, within two (2) business days identifying the discrepancies between the invoiced amount and Advertiser’s evidence. Company may consider such report, but shall have final authority in determining the correct amount. Company’s failure to invoice Advertiser at least bi-monthly shall not constitute the waiver of any amounts due to Company by Advertiser and/or Advertiser’s breach of this Agreement.
4. Reporting. Company will provide reports and Advertiser agrees that Company will invoice Advertiser based on Company reporting, which shall be binding based on terms set forth in the IO. If Company permits Advertiser to host the Advertisement in a CPA campaign, Advertiser will allow Company to place a tracking pixel on the Advertisement and Company reporting generated from such tracking pixel will be binding on Advertiser. Company may allow use of Advertiser’s reporting only if agreed to expressly in writing and in addition to the terms and conditions of the IO.
5. Advertiser’s Representations; Indemnification. Advertiser represents and warrants to Company that Advertiser holds all necessary rights to permit the use of the advertisement by Company for the purpose of this Agreement; and that the use, reproduction, distribution, transmission or display of advertisement, any data regarding users, and any material to which users can link, or any products or services made available to users, through or as a result of the advertisement will not (a) violate any civil or criminal laws or any rights of any third parties, (b) contain any material that is unlawful or otherwise objectionable, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law, or (c) use any trademark, trade name, or corporate name of Company without the prior written consent of Company. If Advertiser is acting on behalf of or as an agent of a third party then Advertiser agrees that is has the right to act on behalf of that third party and has the ability to bind that third party under the terms and conditions of the IO.
6. Content Control. Advertiser will be solely responsible for creating, managing, reviewing, deleting and otherwise controlling the content. Advertiser acknowledges that, in providing Company with the ability to publish and distribute the Content, Company is acting only as a passive conduit for the distribution and publishing of such content. Advertiser retains complete discretion over the content published and distributed by Advertiser. Company has no obligation to Advertiser, and undertakes no responsibility to review the content or user-generated content to determine whether such content may result in liability to third parties.
7. Right to Reject Advertisement; Positioning. All contents of advertisements are subject to Company approval. Company reserves the right to reject or cancel any advertisement, IO, URL link, space reservation or position commitment, at any time, for any reason whatsoever (including belief by Company that any placement thereof may subject Company to criminal or civil liability).
(a) Each party may use Confidential Information received from the other party only relating to and to further the purposes of this Agreement and may only provide such Confidential Information to its respective directors, employees and advisors who have a “need to know” such Confidential Information. The fact that Confidential Information does not carry a proprietary legend, or is transmitted orally, shall not act as a waiver to deprive such information from protection under this Agreement.
(b) Section 8(a) shall not apply to information which belongs to the receiving party or is: (i) already known by the receiving party, (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party, (iii) lawfully received from a third party without restriction on use or disclosure if, to the receiving party’s knowledge, such third party had the legal right to disclose such information, or (iv) independently developed by the receiving party without use of the disclosing party’s Confidential Information. In addition a party may disclose Confidential Information hereunder if pre-approved in writing by the other party for disclosure, or if disclosure is required by law, governmental agency or rule, or court order, so long as the party required to disclose the information provides the other party with timely prior notice of such requirement where permitted.
(c) The parties agree that during the term(s) of the IO and for a period of one year thereafter, they will not directly or indirectly solicit the employment of any of the other party’s employees, officers or directors, provided, that employment solicitations directed to the general public shall not be prohibited pursuant to this Section.
(d) Upon completion or termination of this Agreement or the written request of the isclosing party at any time, the receiving party shall, within five (5) business days from such completion, termination or request, return all copies of Confidential Information to the disclosing party or certify, if so requested, in writing that all copies of Confidential Information have been destroyed; except for material reasonably required to be maintained by counsel. A receiving party may return Confidential Information, or any part thereof, to the disclosing party at any time.
(e) During the term of this Agreement and for twelve (12) months hereafter, Advertiser shall not directly or indirectly solicit any on-line publisher, Web Site, or email provider that is affiliated with Company. In the event that Advertiser does so directly contract with such affiliate or in any other way violates this Agreement then Advertiser shall pay Company an additional commission equal to what the Company would otherwise have earned had Advertiser not violated this section 8. Any agency executing this Agreement represents and warrants that it has the authority to bind its client to the terms stated herein and remains jointly and severally liable for all obligations under this Agreement.
(f) The parties agree and understand that a material breach of this Section 8 will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, may be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond. The foregoing remedy is a material, bargained for basis of this IO and has been taken into account in each party’s decision to enter into this IO.
9. DISCLAIMER OF WARRANTIES. Company PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES AND PARTNERS, 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. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, CCOMPANY’s SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
10. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL Company BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OR USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF Company WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO ADVERTISER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED HEREUNDER. IN LIEU OF REFUND, COMPANY SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, IF THE “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
11. Termination. In addition to any other remedies that may be available to it, Company may immediately terminate the IO in the event of any breach by Advertiser of the representations and warranties contained herein or nonperformance of any of its obligations hereunder. Either party may cancel any IO, for any reason, on (48) forty-eight hours written notice receipt. Sections 1 through 10, 12 through 16, and any accrued but unpaid payment obligations, shall survive termination.
13. Indemnity. Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party, its affiliates and subsidiaries and its and their respective directors, officers, employees and agents (collectively, the “Indemnified Party”) from and against any and all third-party claims, suits, actions, loss, cost, damage, liability, including, without limitation, reasonable fees and disbursements of counsel whether or not suit is brought or other expense resulting from the actual or alleged breach of any obligation, representation or warranty of the Indemnifying Party under this Agreement or from the actual or alleged negligent or wrongful acts or omissions of the Indemnifying Party or the Indemnifying Party’s affiliates, including its or their or their respective directors, officers, employees, or agents taken in connection with this Agreement, provided that the Indemnified Party shall give the Indemnifying Party prompt written notice of any claim for indemnification hereunder and provided further that the Indemnified Party shall permit the Indemnifying Party to control the defense or settlement of any such claim or cause of action (utilizing counsel reasonably satisfactory to the Indemnified Party). The Indemnified Party shall provide full information and reasonable assistance to the Indemnifying Party as required to settle or defend any such claim. The Indemnifying Party shall permit the Indemnified party to monitor any defense or settlement conducted by the Indemnifying Party and the Indemnifying Party shall not settle any such Claim without the Indemnified Party’s prior written approval (not to be unreasonably withheld in light of the nature of the claim and the terms and conditions of the proposed settlement).
14. General Provisions. The parties hereby represent and warrant that they will at all times fully comply with all applicable statutes, rules and regulations with respect to their respective businesses including, without limitation, the CAN SPAM Act of 2003, laws governing deceptive trade practices and/or online marketing and/or advertising. Furthermore, the parties hereto expressly agree that the Customer Database generated under the IO shall be shared by the parties. Each of the parties shall be free to use this database as each sees fit, in its sole discretion, provided that such use complies with all applicable state and federal laws, rules and regulations, including, without limitation, the CAN-SPAM Act of 2003, as amended from time to time (“CAN-SPAM”). The parties hereby represent and warrant that they shall at all times fully comply with all applicable state and federal statutes, rules and regulations with respect to their respective businesses including, without limitation, CAN-SPAM, laws governing deceptive trade practices and/or online marketing and/or advertising. Advertiser agrees to maintain a regularly updated suppression list containing current unsubscribe requests in conformance with CAN-SPAM. Advertiser agrees to maintain an updated unsubscribe suppression list for the offer and will make such list available to the Company. Company agrees to 1) check such suppression list on a daily basis; 2) maintain similar suppression lists for opt-out requests that Company receives directly from its email recipients in association with the offer covered under this insertions order 3) transmit all unsubscribe requests back to the Advertiser within five (5) days of its receipt of such requests and maintain electronic records evidencing the date and time of removal of such email address(es) from its lists and/or databases. Company explicitly agrees not to use any suppression list for purposes of e-mail marketing (or provide a suppression list, or any part thereof, to any third party for said purpose) and will not send, or cause to be sent, any commercial e-mail messages to an e-mail address appearing on any suppression lists. Company agrees not to use suppression list for purposes of e-mail appending in any manner whatsoever.
15. Miscellaneous. This Agreement will be governed and construed in accordance with the laws of the State of New York without giving effect to conflict of laws principles. Advertiser/client and Company agree to submit to jurisdiction in Delaware and venue in such courts as determined by Company. 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. Advertiser may not assign this Agreement without the prior written consent of Company. 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.
16. Other Agreements. This Agreement sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a writing signed by both parties may change this Agreement.