The Digital Advertising Insertion Order attached hereto or signed from time to time by AdverSert and Advertiser (the “Insertion Order”), together with these terms and conditions (collectively, “Agreement”) sets forth the terms and conditions under which: (a) AdverSert shall include Advertiser’s content (“Advertiser Content”) among the content that AdverSert recommends (“Recommendations”) via AdverSert’s content recommendation distribution software or code (the “Platform”) to visitors to websites operated by third parties with which AdverSert or its affiliates has a contractual relationship (“AdverSert Publisher Websites”), and (b) Advertiser shall compensate AdverSert for each Click and or each 1000 impressions (as defined below) on Recommendations in order to view the Advertiser Content. AdverSert’s distribution of the Advertiser Content shall be referred to herein as the “Service.”
Grant of Rights:
Advertiser grants AdverSert a limited, revocable, non-exclusive, royalty-free right and license to (a) access, index and otherwise use the Advertiser Content in order to provide Recommendations on AdverSert Publisher Websites with respect to Advertiser Content until such time that the amount due to AdverSert for Clicks reaches the Campaign Budget set forth in Section 2 of the Insertion Order and (b) use Advertiser’s name, logo, trademarks and any other proprietary content provided and approved for use by Advertiser, solely in connection with the making of Recommendations to Advertiser Content and for AdverSert’s own marketing purposes in referring to Advertiser as a client, and subject to Advertiser’s standard trademark and content usage guidelines and quality review as provided to AdverSert. Advertiser further grants AdverSert the right to write a case study regarding Advertiser’s use of the AdverSert content recommendation service. The grant of the foregoing licenses do not confer on AdverSert or any other party any other “Intellectual Property Rights” with respect to Advertiser’s intellectual property. (“Intellectual Property Rights” means all forms of proprietary rights, titles, and interests relating to patents, copyrights, trademarks, trade dresses, trade secrets, algorithms, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and all rights to apply for any of the foregoing).
Advertiser may change the Campaign Information (e.g., Campaign Budget, Campaign Dates) set forth in Section 2 of the attached Insertion Order, for a particular month, a portion of a month or on a going-forward basis, at any time by either (i) sending AdverSert representative who has been designated as the campaign manager for Advertiser’s account (“AdverSert Campaign Manager”) an email confirming the change and the period during which it shall be in effect or (ii) using the Campaign Management dashboard in AdverSert Backstage. If Advertiser relies on its designated AdverSert Campaign Manager to revise its Campaign Details, it will only be revised upon Advertiser’s receipt of a confirmation email by AdverSert’s Campaign Manager. Advertiser acknowledges and agrees that AdverSert (i) does not guarantee how often it will recommend any Advertiser Content or that the number of Clicks during any period will fully exhaust Advertiser’s Target Spend for that period and (ii) reserves the right to pause a campaign or cap the Target Spend in any given Campaign Month in its sole discretion. For purposes of clarity, the Campaign Budget shall be in U.S. Dollars, unless otherwise agreed to between the parties.
AdverSert shall provide Advertiser with access to its analytics platform (“Backstage”) which will provide Advertiser with details regarding the amount of Clicks on Advertiser’s Content and the amount due from Advertiser to AdverSert (based on the Cost per Click indicated in Section 2 of the applicable Insertion Order or as otherwise modified by Advertiser during the Campaign Month) upon the conclusion of each month that the Insertion Order is in effect (each a “Campaign Month”). Within fourteen (14) days of the end of Campaign Month within the Insertion Order Term, AdverSert shall provide to Advertiser an invoice setting out the payments due for such Campaign Month. Advertiser shall pay each such invoice within thirty (30) days after the end of the Campaign Month. Any objection to an invoice shall be stated in writing to AdverSert within ten (10) days of receipt of invoice, otherwise Advertiser waives such objections and such invoice will be deemed final, not subject to dispute and accepted by Advertiser. Any late payments will accrue interest equal to one and one half percent (1.5%) per month, or the maximum amount allowable under law, whichever is less, compounded monthly. If AdverSert agrees to a written request by an Advertiser to send an invoice to a third party on Advertiser’s behalf, Advertiser agrees to remain responsible and liable for payment, and if such third party does not pay the invoice within the thirty (30) day payment period, Advertiser will immediately pay all such amounts to AdverSert. Further, if Advertiser fails to make any payment as set forth herein, Advertiser will pay all reasonable expenses (including attorneys’ fees) incurred by AdverSert in collecting such payments. AdverSert, in its sole discretion, may require a prepayment from Advertiser before distributing Advertiser’s content until such time as Advertiser has established a credit history with AdverSert. In addition, AdverSert reserves the right to require immediate payment of any outstanding amounts due if the amount due to AdverSert exceeds $50,000 in any given Campaign Month or to impose a credit limit on Advertiser based on Advertiser’s credit history, application or any other factors that AdverSert deems relevant. In addition to any other rights or remedies AdverSert may have, failure to pay any invoices as set forth herein may result in AdverSert cancelling or pausing Advertiser’s campaign(s). For purposes of clarity, all payments shall be made in U.S. Dollars, unless otherwise agreed to between the parties.
AdverSert may charge any applicable national, state or local sales or use taxes or value added taxes that AdverSert is legally obligated to charge (“Taxes”). If applicable, Advertiser may provide AdverSert with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, AdverSert will not charge and or collect the Taxes covered by such certificate. In the event that any amount payable by Advertiser hereunder is subject to deduction or withholding for taxes, the amount payable by Advertiser hereunder shall be increased such that the amount received by AdverSert equals the amount stated on the applicable invoice. Upon written request, AdverSert will provide Advertisers with any forms, documents, or certifications as may be required for Advertiser to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.
A “Click” will be considered to have occurred whenever a website visitor clicks on a Recommendation in order to view Advertiser Content. Clicks shall be measured and reported to Advertiser on the basis of the Click data captured in AdverSert’s tracking logs, which are available to Advertiser anytime on Backstage. AdverSert’s measurements are the definitive measurements under the Agreement and will be used to calculate the amounts due to AdverSert hereunder. For purposes of clarity, the Cost per Click shall be in U.S. Dollars unless otherwise agreed to between the parties. Advertiser shall have the option to manage its own Click data on Backstage using AdverSert’s “Self-Service” feature. Advertiser understands and agrees that Advertiser is responsible for its own actions with respect to the Campaign if Advertiser chooses to use AdverSert’s Campaign Management features in Backstage. AdverSert will not review Advertiser’s activity and AdverSert is not responsible or liable for any mistakes made by Advertiser in the managing of its own Campaign. AdverSert reserves the right to restrict Advertiser’s ability to edit Campaign Details in Backstage for any reason or no reason. AdverSert agrees that Advertiser, at Advertiser’s expense, shall have the right to audit AdverSert’s Click reporting system, invoices and payments to verify AdverSert’s compliance with the obligations contained in this Agreement. Such audits shall be conducted by an independent third party, upon providing AdverSert with no less than thirty (30) days’ notice, and shall take place no more frequently than once per any consecutive twelve (12) month period, and shall be conducted during regular business hours at AdverSert’s business location and in such a manner as to not unreasonably interfere with AdverSert’s normal business activities. In the event a discrepancy arises of more than fifteen percent (15%) between the number of Clicks reported in AdverSert’s tracking logs and the number reported in Advertiser’s tracking logs, AdverSert and Advertiser shall work together in good faith to identify the source of such discrepancy, remedy it, and, if appropriate, adjust AdverSert’s prior invoicing.
Advertiser Representations and Warranties:
Advertiser represents and warrants that it has all necessary rights, licenses and clearances to enter into this Agreement, to grant the rights granted herein and to use the Advertiser Content as specified herein and subject to these terms and conditions, including, without limitation, the intellectual property rights therein. Advertiser further represents and warrants that it will comply with AdverSert’s Advertiser Content Guidelines located at http://www.AdverSert.com/advertising-policy-033114.
AdverSert Representations and Warranties:
AdverSert represents and warrants that it possesses all of the rights and authority necessary for it to enter into this Agreement and to grant the rights granted herein. THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY ADVERSERT. ADVERSERT PROVIDES ITS RECOMMENDATIONS SERVICE “AS IS.” ADVERSERT EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
As between the parties, AdverSert owns all Intellectual Property Rights in the Widget and Advertiser owns all Intellectual Property Rights in the Advertiser Content.
Except for that which Advertiser indemnifies AdverSert, AdverSert shall indemnify, defend, save and hold harmless Advertiser and its parent, subsidiaries and affiliates, and its and their representatives, officers, directors, agents, and employees, from and against any and all third-party claims, damages, fines, penalties, awards, judgments, and liabilities (including reasonable outside attorneys’ fees and costs) (“Losses”) resulting from, arising out, of or related to: (i) AdverSert’s breach or alleged breach of any of AdverSert’s representations or warranties set forth in paragraph 8, or (ii) a claim that the Widget violates a third party trademark, trade secret, copyright or privacy right, except to the extent that such claim arises out of the combination of AdverSert’s widget with Advertiser Content.
Advertiser shall indemnify, defend, save and hold harmless AdverSert, the owners of the AdverSert Publisher Websites and its and their parents, subsidiaries, affiliates, representatives, officers, directors, agents, affiliates, and employees, from and against all Losses resulting from, arising out, of or related to (i) Advertiser’s breach or alleged breach of any of Advertiser’s representations, warranties or agreements, (ii) a claim that the Advertiser Content infringes upon, violates, or misappropriates any third party Intellectual Property Rights, or slander, defame, or libel any person, or do not comply with any applicable law or regulation, (iii) Advertiser’s failure to secure all rights, title, and interest necessary to display the Advertiser Content via the Widget; and (iv) an allegation that Advertiser or Advertiser’s Content, or products or goods being advertised in the Advertiser Content, violate any applicable law or regulation.
The parties agree that in claiming any indemnification hereunder, the Party claiming indemnification (the “Claimant”) shall (i) promptly notify the other party in writing of the claim; (ii) grant the indemnifying party sole control of the defense (except that the Claimant may, at its own expense, assist in the defense); and (iii) provide the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense of the claim. In no event shall the indemnifying party enter into any settlement or agree to any disposition of the indemnified claim(s), without the prior written consent of the Claimant.
Limitation of Liability:
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ADVERSERT BE LIABLE TO ADVERTISER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES. ADVERSERT’S TOTAL LIABILITY TO ADVERTISER UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID OR ACCRUED BY ADVERTISER TO ADVERSERT UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE DATE OF THE INITIAL EVENT GIVING RISE TO THE LIABILITY.
Neither party will use or disclose to any third party the other party’s Confidential Information except as necessary for the performance of this Agreement or to enforce the terms of this Agreement. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to a court order from a court of competent jurisdiction, provided that the party required to make such a disclosure gives reasonable prior written notice to the other party so that it may contest such order and in the event that disclosure is required, only discloses the portion of Confidential Information that its legal counsel advises is legally required. “Confidential Information” consists of (a) any technical information or plans concerning the Widget or any software or other technology of AdverSert; (b) any financial information of the other party; (c) other information disclosed by one party to the other party that is marked as confidential; or should reasonably be assumed to be confidential under the circumstances; and (d) the content of this Agreement. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) is obtained by the receiving party rightfully from a third party who/that has no duty of confidentiality to the disclosing party.
Availability of the Service: AdverSert makes no representations regarding the availability of the Service and Advertiser acknowledges and agrees that the Service may be unavailable from time to time due to (i) equipment, software or service malfunctions; (ii) maintenance and update procedures or repairs; or (iii) causes beyond the control of AdverSert or its affiliates, including, without limitation, interruption or failure of telecommunication or digital transmission links, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that AdverSert shall not be liable for any unavailability caused by any of the foregoing. In addition, Advertiser acknowledges and agrees that AdverSert and its affiliates have no responsibility or liability with respect to the operation of any third party publisher sites within the network. Advertiser is not required to provide any feedback or suggestions to AdverSert. To the extent Advertiser does provide any such feedback or suggestions, Advertiser hereby grants to AdverSert and its affiliates a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit all such feedback and suggestions without restriction.
Advertiser or AdverSert may terminate this Agreement (a) for convenience on seven (7) days’ written notice at any time or (b) immediately in the event that the other party fails to remedy a material breach of this Agreement within forty-eight (48) hours of its receipt of written notice thereof. In addition, AdverSert may terminate this Agreement immediately in the event that Advertiser fails to comply with its Advertising Content Guidelines. AdverSert may terminate or suspend Advertiser’s access to or use of the Service and/or terminate this Agreement at any time if: (a) in the sole discretion of AdverSert, such action is necessary to prevent errors or harm to any system or network, or to limit AdverSert’s or its affiliates’ liability or; (b) Advertiser attempts to access or use the Service in an unauthorized manner, including without limitation any attempt to gain access to the accounts of other AdverSert customers or use the Service in a way that infringes AdverSert’s, its affiliates’ or a third party’s Intellectual Property Rights.
Choice of Law:
This Agreement will be governed by and construed in accordance with the laws of the State of New York excluding its conflicts of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the County of New York, New York and the parties hereby irrevocably consent to personal jurisdiction and venue therein.
Assignment: The rights and obligations of each party hereunder shall inure to the benefit of the respective successors and assigns of the parties hereto, provided that, except as expressly provided herein, the Agreement and any rights or obligations hereunder shall not be assigned or delegated without the prior written consent of the other party (which shall not be unreasonably withheld), except that, either party may assign the Agreement to an acquirer of all or substantially all of such party’s assets, whether by merger, operation of law or otherwise, without the other party’s prior written consent.
AdverSert’s Provision of Services:
Advertiser acknowledges that AdverSert’s parent company, AdverSert.Com Ltd., owns all intellectual property rights in and to the Service and any related technology and that AdverSert is just a licensor and distributor of the Service and any related Technology. Accordingly, Advertiser understands and agrees that Advertiser’s content will be distributed pursuant to the Services and any related technology licensed by AdverSert.Com Ltd. to AdverSert and that certain other backend services will be performed by AdverSert.Com Ltd., on behalf of AdverSert. Advertiser hereby consents to AdverSert’s delegation of the performance of some of the Services hereunder to AdverSert.Com Ltd., subject to AdverSert remaining liable for the complete and correct discharge of all its responsibilities hereunder.
Neither Advertiser nor AdverSert will be liable for delay or default in the performance of its respective obligations under this Agreement if such delay or default 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. If Advertiser’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond 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 AdverSert, 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.
This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. The failure of either party to enforce strict performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of that party’s right. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by a duly authorized representative of each party. Should any section or part of a section within this agreement be rendered void or unenforceable by any court of competent jurisdiction, the remaining provisions of this agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted. Paragraphs 7-12, 15, and 19 of these terms and conditions shall survive termination of this Agreement. Electronic signatures on this Agreement shall be deemed originals. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.