These Terms and Conditions supplement the Insertion Order, between RightSide Data (“RD”) and (“Advertiser”) and sets forth additional rights and obligations of each party with respect to the advertising campaign described earlier in this document. To the extent that these Terms & Conditions conflict with the Insertion Order, this document shall govern.
1. PAYMENT: Advertiser billing will be remitted within five (15) days of receipt of invoice and every month thereafter, if applicable. Payment terms are net 15 days from receipt of invoice. Late payments shall be subject to a penalty on the due and unpaid amounts equal to the lesser of 1.5% per month or the highest rate permitted by law. Advertiser agrees that it shall be solely liable for payment to RD. RD’s failure to invoice Advertiser shall not constitute the waiver of any amounts due to RD by Advertiser and/or Advertiser’s breach of this insertion order.
2. REPORTING: RD shall make available in writing or electronically periodic campaign reports, which include impressions, clicks and yield percentages or as otherwise specified in the insertion order.
3. ADVERTISER REPRESENTATIONS: Advertiser represents and warrants that it holds required intellectual property rights and/or licenses to permit the display of advertising materials by RD. Advertiser warrants that its materials so provided to RD do not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights; do not violate any law, statute, ordinance or regulation regarding the creation and marketing of online materials including, without limitation, those governing false and/or deceptive advertising; and are not defamatory or trade libelous in any way.
4. ASSIGNMENT: Advertiser will not assign this insertion order without RD’s prior written consent. RD may assign all or a portion of its duties and obligations hereunder to any affiliate, successor and/or other third party with prior written approval from Advertiser and the acceptance by such assignee of the terms and conditions set forth herein. Subject to the foregoing, the terms of this Insertion Order will be fully binding upon, inure to the benefit of and be enforceable by the parties’ respective successors, heirs, executors, administrators and permitted assigns.
5. CREATIVE CONTROL: Advertiser will be solely responsible for the advertising banners, display creatives, text advertisements, email offers, sales pages, landing pages and other materials issued placed with RD. Advertiser acknowledges that RD is acting only as a passive distributor of such content, and RD has no obligation regarding the content of advertisements placed by Advertiser. Title to and ownership of all intellectual property rights of the creative materials shall be remain the property of Advertiser.
6. COMPLIANCE WITH LAW & RD’s STANDARDS: Advertiser (and its affiliates, agents and representatives) shall comply with all applicable laws, rules and regulations pertaining to this Agreement, including, without limitation CAN-SPAM. Advertiser is further obligated to comply with RD’s standard regarding: permissible domains and subject lines in emails;; frequency of mailing to the same email address; inclusion of a physical address; inclusion and prominence of an unsubscribe link; and be able to provide RD with opt-in information within 3 days of request by RD. RD’s standards of behavior shall be provided to Advertiser from time-to-time and shall be deemed incorporated herein by reference.
7. DISCLAIMER OF WARRANTIES: Both parties provide all services performed hereunder “AS IS” and hereby expressly disclaim all warranties, expressed or implied, regarding their services or any portion thereof, including any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. Without limiting the generality of the foregoing, both parties specifically disclaim any warranty regarding: (1) the number of individuals who will see the content; and (2) any benefits that the other party might obtain from the campaign. Neither party guarantees continuous or uninterrupted service to the campaign. All numbers and amounts relating to conversions or leads contained in this insertion order are estimates only, and are not at all guaranteed by either party.
8. LIMITATIONS ON LIABILITY: In no event shall either party be liable for any special, direct, indirect, incidental, actual, punitive or consequential damages, or for interrupted communications, lost data or lost profits, arising out of, or in connection with, this insertion order. Under no circumstances shall either party be liable to the other party or any third parties for an amount greater than the amounts received from Advertiser pursuant to this insertion order. Provided, however, that such limitation shall not apply in the event of a violation of law or RD’s standards by Advertiser.
9. INDEMNITY: Advertiser agrees to indemnify, defend, and hold harmless RD, its parents, successors, subsidiaries, and affiliates, and their respective directors, officers, agents and employees for any claims, liabilities, costs and expenses (including reasonable attorney’s fees) made against Advertiser by a third party or parties or a government agency as a result of: (i) any breach of the terms of this Agreement, including but not limited to the foregoing representations and warranties; (ii) any claim arising from the sale or license of Advertiser’s goods or services; (iii) any violation of an applicable law, rule, or regulation by Advertiser; or (iv) any other act, omission or misrepresentation by Advertiser. RD agrees to indemnify, defend, and hold harmless Advertiser, its parents, successors, and subsidiaries, and their respective directors, officers, employees for any claims, liabilities, costs and expenses (including reasonable attorney’s fees) made against the RD by a third party or parties as a result of: (i) any breach of the terms of this Agreement, including but not limited to the foregoing representations and warranties; (ii) any violation of an applicable law, rule, or regulation by RD; or (iv) any other act, omission or misrepresentation by RD. The indemnifying party may participate in the defense of the indemnified party at its own expense.
10. CONFIDENTIAL INFORMATION: Neither RD nor Advertiser 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. However, 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. RD’s confidential information shall remain the property of RD, and Advertiser’s confidential information shall remain the property of Advertiser. The parties shall not disclose any of the terms and conditions of this document to any third party without the express prior written consent of the other party.
12. TERMINATION: RD may terminate this insertion order upon providing ten (10) days written notice to Advertiser. Advertiser may terminate this insertion order upon providing ten (10) days written notice. In either case, Advertiser shall remain liable for all costs incurred prior to termination. Provided, however, in the event of a violation of any applicable law or RD’s terms and conditions and/or standards, RD my terminate this insertion order upon written notice effective immediately.
13. MISCELLANEOUS: This insertion order shall be governed by, interpreted and construed in accordance with the laws of the State of Florida. The parties are independent contractors and no agency, partnership, joint venture or employer-employee relationship is intended or created hereby. This insertion order sets forth the entire understanding and agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter and may be changed only by a subsequent writing signed by both parties. Unless otherwise stated, this insertion order is non-exclusive to either party and either party shall have the right to enter into similar agreements with other third parties. 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 laws governing deceptive trade practices.