Publisher shall use good faith efforts to deliver the number of click-throughs or impressions (if specified in the applicable Schedule) within the time period stated, but shall not be liable at all for failing to do so.
If a Schedule states that it is an open order, then Advertiser shall not limit or cap its budget or limit the items available for Publisher to promote on the Media Properties (e.g. Advertiser shall make all related information that are available on Advertiser’s websites available for Publisher to promote on the Media Properties) unless otherwise specified. 3) Schedules. Upon mutual written consent and approval (which may occur via email), the Parties may make changes to the non-financial details of an advertising campaign previously set forth in a Schedule (e.g., changes to the placement description, creative unit, start/end dates and number of ad requests).
No other conditions, provisions, or terms of any sort appearing in any writings or other communications made in connection with such Schedules, including without limitation those contained on or accompanying checks or other forms of payment, will be binding on Publisher, whether in conflict with or in addition to this Agreement.
The Schedules are not subject to cancellation, except as provided below under Section 7.
Advertiser will use Publisher services in accordance with applicable United States Advertisement Laws in a manner which does not interfere with, disturb, or disrupt other network users, services, or equipment, as determined by Publisher in its sole discretion.
Each Schedule shall specify (if applicable) the types and amount of inventory to be delivered (e.g. impressions, clicks, or other desired actions as the “Deliverables”), the price for such Deliverables, the maximum amount of money to be spent pursuant to the Schedule (if applicable), the start and end date of the campaign, if applicable. 4) Publishers Rights Ads Publisher reserves the right, without liability, to reject, remove and/or cancel any Ads which contain content or links which do not meet Publisher’s advertising specifications, at Publisher’s sole discretion.
Publisher’s sole liability under this Section shall be to refund the pro-rata portion of amounts paid for the unfulfilled advertising term, if any.
Publisher may redesign its Media Properties at its sole discretion at any time. a) Advertiser hereby grants Publisher the right to display its Ad(s) and other related content such as thumbnail photos on the designated Media Properties.
Failure by Publisher to publish any requested Ad(s) does not constitute a breach of contract or otherwise entitle Advertiser to any legal remedy. b) Advertiser’s failure to comply with all applicable requirements of Publisher’s advertising specifications may delay or prevent delivery of the Ad(s). c) Advertiser shall be solely responsible for the content of its Ad(s) and any web site linked to from such Ad(s) and shall indemnify Publisher for all loss, costs, and damages in connection with any claims of infringement of any third-party rights.
Advertiser represents, warrants and covenants to Publisher that at all times,
(d) it is fully authorized to publish the entire contents and subject matter of all requested Ad(s) (including, without limitation, all text, graphics, URLs, and Internet sites to which URLs are linked);
(e) all such materials and Internet sites comply with all applicable laws and regulations and do not violate the rights (including, but not limited to, intellectual property rights) of any third-party;
(f) it has the full corporate rights, power and authority to enter into this Agreement and to perform the acts required of it hereunder, and its execution of this Agreement does not and will not violate any agreement to which it is a party or by which it is otherwise bound, or any applicable law, rule or regulation; and
(g) each such Internet site is controlled by Advertiser and operated by Advertiser or its independent contractors, is functional and accessible at all times, and is suitable in all respects to be linked to from the applicable site containing the Ad(s). (h) It is the Advertiser’s obligation to submit Ad(s) in accordance with Publisher’s then-existing advertising criteria or specifications
1) including content limitations, 2) technical specifications, 3) privacy policies, 4) user experience policies, 5) policies regarding consistency with Publisher’s public image, community standards 6) regarding obscenity or indecency taking into consideration the portion(s) of the Media
Advertiser will ensure that any collection, use and disclosure of information obtained pursuant to the related Schedule comply with all applicable laws, regulations and privacy policies, including all of the requirements of the CAN-SPAM Act.
Advertiser agrees not to send any unsolicited commercial email or other online communication (e.g., “spam”) through to Publisher users and shall comply with all applicable Publisher policies regarding bulk mail and Comply with FCC solicited phone call rules.
The FCC rules require a caller to obtain your written consent 1) on paper or through electronic means, including website forms, 2) a telephone keypress – before it may make a prerecorded telemarketing call to your home or wireless phone number.
For the purposes of any email advertising placements, or solicited phone, The Advertiser “CAN NOT” designate the Publisher as the “sender” for compliance with the CAN-SPAM Act or Solicited Phone Call Regulations.
This section shall survive the completion, expiration, termination or cancellation of this IO for a period of five (5) years. 6) Payment Terms and Calculations. Advertiser shall be invoiced by Publisher on a monthly basis upon completion of the calendar month in which the advertising was displayed unless stated otherwise in the applicable Schedule.
Publisher’s payment terms are net 30 days from the date of invoice.
In addition to any other rights, Publisher may immediately remove Advertiser’s Ad(s) in the event of non-payment by Advertiser within such time period.
All sums payable by Advertiser to Publisher under this Agreement are exclusive of any sales tax, indirect or similar taxes chargeable on any supply to which those sums relate. All billing calculations are based solely on the ad impression or quick count metrics as calculated by Publisher (including, but not limited to CPM and CPC), not Advertiser or third-party calculations, unless otherwise specified in the Schedule.
7) Term and Termination. Unless terminated earlier in accordance with this Agreement, all Schedules hereunder will begin upon the Effective Date and extend for a period of one (1) year thereafter.
This Agreement may be terminated by either party if a material breach of this Agreement remains uncured after the non-breaching party has given thirty (30) days prior written notice to the breaching party specifying the breach.
So long as any Schedule remains in effect, this Agreement shall also remain in effect.
If any Schedule is terminated for any reason, Advertiser shall pay to Publisher, within thirty (30) days after such termination, all amounts not yet paid for such delivered Ad requests up to the effective date of termination.
IF EITHER PARTY TERMINATES ANY SCHEDULE, ADVERTISER’S SOLE REMEDY WILL BE A REFUND OF ANY PRE-PAID FEES IN EXCESS OF THE FEES OWED TO PUBLISHER UNDER THE SCHEDULE. NEITHER PUBLISHER NOR ANY OF ITS AFFILIATES WILL HAVE ANY OTHER LIABILITY OF ANY NATURE TO ADVERTISER. 8) Confidentiality. Any marked confidential information and proprietary data provided by one party, including the pricing of the Ads, shall be deemed “Confidential Information” of the disclosing party.
Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary.
Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations.
Notwithstanding the foregoing, the recipient may disclose such Confidential Information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing party sufficient prior notice in order to contest such request, requirement or order. 9) Liability, Warranty & Indemnity (a) EXCEPT AS OTHERWISE STATED HEREIN, PUBLISHER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO OR PAGES DISPLAYED ON THE MEDIA PROPERTIES OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE TIMES OF THE MEDIA PROPERTIES. PUBLISHER DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY OTHER LOSS, INJURY, COST OR DAMAGE SUFFERED BY ADVERTISER OR ANY THIRD PARTY.
IN NO EVENT SHALL ANY PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS.
THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.
IN NO EVENT SHALL ANY PARTY BE LIABLE TO ADVERTISER FOR AN AMOUNT IN EXCESS OF THE TOTAL DOLLAR AMOUNT RECEIVED OR RECEIVABLE BY PUBLISHER FROM ADVERTISER FOR THE SPECIFIC AD AT ISSUE. (b) Advertiser agrees to defend, indemnify and hold harmless Publisher and each of Publisher’s agents, customers, subcontractors and affiliates, and the officers, directors, and employees of any of the foregoing, from, against and in respect of any and all losses, costs, (including reasonable attorney’s fees) expenses, damages, assessments, or judgments (collectively, “Liabilities”), resulting from any claim against any such parties in connection with Advertiser’s Ad(s), except to the extent that such claims directly resulted from the gross negligence or willful misconduct of Publisher. 10) General Provisions. These terms and conditions are governed by the laws of the State of Tennessee, USA.
The Parties consent to the exclusive jurisdiction and venue of courts of Jackson Tennessee for all disputes related to the subject matter hereof.
No joint venture, partnership, employment, or agency relationship exists between Advertiser and Publisher.
Neither Party will be deemed to have waived or modified any of these terms and conditions except in writing signed by its duly authorized representative.
Neither Party may assign its rights hereunder to any third-party unless the other Party expressly consents to such assignment in writing, not to be unreasonably withheld.
If any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be deemed modified to the extent necessary to make them enforceable.
Except as specifically provided herein, this Agreement and all Schedules hereto constitute the entire understanding and agreement between the parties and supersedes any and all prior understandings and/or agreements between the parties with respect to the subject matter.
No change, amendment or modification of any provision of this Agreement or waiver of any of its terms will be valid unless set forth in writing and mutually agreed to by the parties. This Agreement is made between the Publisher and Advertiser as set forth below, pursuant to the Master Advertising Agreement (CPC, CPL, CPM) between the Third-Party Companies and Jeffery G. Douglas, (the “Agreement.”)
Except as expressly set forth herein, this Schedule is subject to the terms and conditions of and incorporated into the Agreement. All capitalized terms, where not defined herein, will have the meanings set forth elsewhere in the Agreement. Advertiser: 1) Individual, 2)Company or Company Representative on Behalf of Another Person or Company Publisher: 1) Jeffery G. Douglas 2) Third-Party and/or Affiliated Associate Media Properties: Jeffery G. Douglas websites or other means of advertisement with any subsidiaries and/or syndication partners. Summary: 1. Jeffery G. Douglas may bucket inventory at the end of each month for the following month, by profitability, or other metrics at Publishers sole discretion.
The parties may also re-bucket inventory at other times as necessary within reasonable request.
Jeffery G. Douglas “CAN NOT” provide a reasonable number of buckets by point of sale (“POS”), so Advertiser can optimize spending to be most effective based upon referrals, profitability or strategic objectives.
(“POS”) is the Advertisers sole reasonability of tracking “where all sales” originated from.
Publisher “may be able” to provide “some details” depending on type of advertisement, but in no guaranteed or responsible for such request. 2. CPC’s, CPL’s, CPM’s are set on a per bucket level per Third-Party point of sale, and are set at the end of each month for the following month; provided, however, that the CPC’s, CPL’s, CPM’s are set so that the parties reasonably agree that:
(i) the estimated payment for all buckets (in aggregate) in each Publishers POS for the following month represents a percentage of the aggregate estimated gross profit to be earned by Jeffery G. Douglas in that POS for the following month equal to at least for such POS as listed below, and
(ii) the estimated payment for each bucket (individually) in each Publishers POS for the following month represents a percentage of the estimated gross profit to be earned by for that bucket in that Publishers POS for the following month equal to at least as listed below.
The parties agree that a reasonable estimation should be based on 30 days’ past history (through the 20th day of the month prior to the month for which CPC’s, CPL’s, CPM’s are being set or some other mutually agreeable cut-off date) of individual properties (regardless of which bucket they were in the past) and then aggregated based on whichever bucket the properties will be in the following month.
Transactions, gross profit, and other metrics derived from clicks from Publisher to a particular POS that are then redirected to another POS shall be attributed to the first Publishers POS (as will the clicks).
All calculations and payments shall be based on the number of clicks tracked and counted by Publisher.
3. In the event that the actual payment is less than an amount equal for that POS, it will be billed on next statement and/or invoice. 4. In the event that the actual payment is more than that POS, it will be credited on next statement and/or invoice. 5. The CPC’s, CPL’s, CPM’s shall be as follows: Note: the CPC’s, CPL’s, CPM’s for each Publishers POS shall also apply to any traffic to such POS from users in countries without an Povider POS; provided, however, that if such traffic is in separate buckets from the rest of such POS’s buckets (e.g. current providers pointed to) such separate buckets (in aggregate) for such POS shall be treated as a separate POS for purposes of the calculations in Paragraphs 2 and 4 of this Schedule (e.g. Publishers buckets pointed to Advertiser are treated as their own POS. 6. At the request of Advertiser, Publisher may exceptionally adjust CPC’s, CPL’s, CPM’s levels mid-month in response to site outages, dramatic traffic quality changes, etc.
In the event of site outages or natural or man-made disasters, Publisher may pause Advertainment(s) if the parties don’t agree on appropriate adjustments. In the event of dramatic traffic quality changes that Publisher knew about in advance but did not inform Advertiser of, then the agreed-upon CPC’s, CPL’s, CPM’s changes shall be retroactive to the later of:
(i) three days prior to the agreed CPC’s, CPL’s, CPM’s change, or
(ii) the traffic quality change. In addition, Publisher may change its CPC’s, CPL’s, CPM’s for the buckets in any point of sale, effective as of the 15th day of a month, if:
(i) it shows (to Publisher to be a reasonable satisfaction) that, for the 15 days immediately prior to the 5th day of such month, its overall marketing efficiency (cost of clicks delivered during such period at the previously-determined CPC’s, CPL’s, CPM’s divided by the gross profit from such clicks) for the Publisher-sourced traffic for such POS is/was anticipated to be at the time the CPC’s, CPL’s, CPM’s were set for such month (e.g. if the CPC’s, CPL’s, CPM’s for the month were initially set so as to hit an efficiency of limit but the actual efficiency for the 15-day period leading up to the 5th day of a month was higher), and
(ii) it gives Advertiser notice of (and details of) the requested changes at least 3 business days prior to the 15th of such month, and
(iii) such CPC’s, CPL’s, CPM’s meet all the requirements of Paragraph 2 of this Schedule (as applied to the 15 day period leading up to the 5th day of such month).
Other CPC’s, CPL’s, CPM’s reductions may be made from time to time if mutually agreed upon or have reached the set threshold thereof.
In addition, Publisher may (for financial, strategic, competitive, or other reasons) raise or lower its CPC’s, CPL’s, CPM’s on any buckets in any POS:
(i) effective on the 15th day of a month if it gives Advertiser notice of such changes at least 3 business days prior to the 15th day of such month, or
(ii) subject to Publishers approval, at other times.
7. Commerce ordering and display (e.g. checking/unchecking check rates, ad order and rotation, number of ads, advertiser rank, decisions to discontinue or change current placements and/or create new placements, etc.) is at Publishers sole discretion for all placements; 8. Publisher will provide to Advertiser any other data necessary for the calculations under this agreement upon written request.
Provided such data is available to Publisher and is a reasonable request thereof. 10. This Schedule does not apply to the “exit window” or to display media, which are covered separately. 11. This Schedule also applies to Publishers CPC’s, CPL’s, CPM’s links located on Publishers “Activities” listing. 12. Publisher provides an open order (no limitation on inventory, no budget or click caps.)
The limitation on inventory, no budget or click caps remain solely the Advertiser liability.
Advertiser shall indemnify Publisher for all loss, costs, and damages in connection with any claims or liability. 13. In the event that Publisher changes the attribution model or the manner in which gross profit is calculated or any other calculation that has the effect of materially changing the amount of gross profit to which are applied, then the parties will negotiate in good faith to make an appropriate change (either up or down) to the CPC’s, CPL’s, CPM’s.
For clarity, such adjustments would not be made for changes in actual financial performance such as changes in ADR or amounts paid by suppliers or conversion rates. 14. In the event that Advertiser has been provided Business Cards as part of Publishers Advertisement Agreement.
Then Advertiser shall indemnify Publisher of all liabilities or harm associated with such Business Cards, any lack of sales or otherwise activities related to the use of business card.
Advertiser “Agrees To,” upon cancelation by Advertiser, to “Pay In Full” any remaining balance and/or fees associated to Business Card Advertisement;
1) If it is a part of the initial CPC’s, CPL’s, CPM’s advertisement or 2) If it is part of a “Promotional” advertainment agreement or 3) If it is a “Monthly” payment agreement or 4) If it was not a “Annually” payment agreement which is subject to “Remaining Balance” based on quality of cards order in association to remaining months of advertisement less all CPC’s, CPL’s, CPM’s and other related fees. 5) The term “Promotional Service” provided to Advertiser by Publisher has limited cancelation time of 10 days from the Approval by Advertiser.