The following are the Terms and Conditions (the "T’s and C’s"), that together with the Insertion Order (the "IO"), govern all advertising campaigns ("Campaigns") that are run by UptickAds, LLC and its subsidiaries (the "Company"), on behalf of the Advertiser or Agency identified on page 1 of the IO. These T’s and C’s will govern all other IOs subsequently executed by Advertiser. These T’s and C’s supersede and replace any and all prior agreements entered into by and between the Company and Advertiser and shall control all existing IOs. Terms not defined in these T’s and C’s shall have the meanings set forth in the IO (the Insertion Order, all subsequently executed Insertion Orders and these T’s and C’s may be collectively referred to herein as the "Agreement"). The Company reserves the right to make changes to these T’s and C’s at anytime, which shall become effective after notice thereof has been provided by the Company to the Advertiser.
The Company provides a wide array of online advertising services (collectively the "Services"), including, without limitation, placement of advertising on its proprietary websites and related email newsletters, email services and delivery of advertising through the UptickAds Network (the "Network"). The IO will indicate which of these Services are being provided to the Advertiser subject to these T’s and C’s.
Publishers: The Network consists of the following publishers (collectively the "Publishers"): (a) publishers of websites; (b) companies that maintain permission-based opt-in email databases; (c) companies that aggregate permission-based data through surveys, hosted web pages and other means; (d) companies that place search terms on behalf of Advertiser; (e) ad-ware companies; and (f) companies that act as agents for any of the foregoing. Unless otherwise indicated on the IO, the Advertiser’s advertisements may be delivered through any of such distribution channels or such new Internet channels as may from time to time come into common usage. Advertiser understands and acknowledges that the Publishers within the Network change on a regular basis.
Representations of the Company: In connection with the Network, the Company makes the following representations: (a) all email publishers within the Network have represented and warranted to the Company that the data within their databases has been collected in compliance with all applicable laws and with the permission of the individual whose record is within such database and that any emails to be delivered by such Publishers on behalf of Advertiser shall be done in compliance with all applicable laws, rules and regulations (b) the Company will not knowingly permit the dissemination of Advertiser’s advertisements to Publishers who will display the advertisement on or around obscene or illegal content.
Sources of Delivery: If Advertiser elects to have its promotional materials delivered through email, unless otherwise stated on the IO, the Company may distribute such promotional material through its proprietary database, its databases under management and its Publisher’s databases.
Data Suppression: In advance of any email campaign, Advertiser shall to the extent required by applicable law, provide the Company its email suppression list (the ‘Suppression list") promptly before any delivery of emails containing advertisements hereunder. Thereafter, as required by applicable law, Advertiser shall provide updated Suppression Lists for use as provided herein. The Company shall, if applicable, make available the Suppression List to its Publishers. The Company assumes no liability whatsoever, if (a) the Suppression List is in any way inaccurate or incomplete; and (b) the applicable Publishers fail to scrub their databases against any such Suppression List provided by Advertiser. The Company’s sole obligation is to make the Suppression List available to its Publishers following its receipt thereof from Advertiser. With respect to each Suppression List provided by an Advertiser, Advertiser represents and warrants that it has the right to provide such Suppression List and the data contained therein to the Company and to authorize the Company to provide such Suppression List to its Publishers. Advertiser shall be solely responsible for, and shall indemnify the Company and its Publishers from and against, any and all Claims (as defined in the T’s &C’s) arising from Advertiser’s acts or omissions in connection with the foregoing provisions of this Section.
Email Subject Lines and From Lines: To the extent that Advertiser furnishes email subject lines and from lines, Advertiser shall have sole responsibility with respect to any liability arising therefrom and shall indemnify and defend the Company from and against, any and all Claims arising therefrom. If Advertiser neglects to provide email subject lines and/or email from lines, the Company may derive such text at its own discretion.
Advertiser Representations: Advertiser represents and warrants that i) it shall manage its email campaigns in compliance with all applicable laws (including, but not limited to, the CAN-SPAM Act of 2003), including, but not limited to maintaining responsibility for honoring all opt-out requests from recipients of emails delivered hereunder and managing all opt-out suppression lists for Advertiser’s email campaigns and that ii) Advertiser has the right to furnish to the Company, any and all creative materials necessary to provide advertising services. In connection therewith, Advertiser shall provide the Company with its address and a working unsubscribe link, which the Company will be caused to be included in each email containing Advertiser’s content.
Lead Generation Campaigns.
Sources of Delivery: If Advertiser elects to have its promotional materials delivered through a Lead Generation Campaign, unless otherwise stated on the IO, the Company may distribute such promotional material through its proprietary websites and registration processes, its websites and registration processes under management and its Publisher’s websites and registration processes.
Opt-In Copy: To the extent that Advertiser furnishes opt-in copy, Advertiser shall have sole responsibility with respect to any liability arising therefrom and shall indemnify and defend the Company from and against, any and all Claims arising therefrom. If Advertiser neglects to provide opt-in copy, the Company may derive such copy at its own discretion.
Advertiser Representations: Advertiser represents and warrants that it shall manage its Lead Generation Campaigns in compliance with all applicable laws and that Advertiser has the right to furnish to the Company, any and all creative materials necessary to provide advertising services.
Pricing of Campaigns
All Campaigns will be priced on a cost-per-action ("CPA"), cost-per-lead ("CPL"), cost-per-thousand ("CPM") or cost-per-click ("CPC") basis or some combination thereof. The specific terms for each such Campaign are as follows:
a.CPA Campaigns Action: The IO will set forth the user action (the "Action"), which shall be the basis on which the Company shall be paid for CPA Campaigns.
Counting: With respect to all CPA Campaigns, unless otherwise stated in the IO, the Company shall have sole and absolute responsibility for calculation of the Actions. Billing will be based on the Company’s counts of the Actions unless the Advertiser’s count of of Actions is higher, in which case billing will be based on the Advertiser’s count of the Actions. The Company’s counting shall be derived from a tracking pixel that the Advertiser shall insert on the confirmation page for each advertisement to be delivered hereunder. The Advertiser shall perform such testing as the Company may reasonably require to ensure that the tracking pixel is working properly in advance of the initiation of a Campaign. In connection with the foregoing testing, Advertiser will provide the Company with a link to the confirmation page where Company can view the pixel for approval prior to initiating the advertising Campaign. If the tracking pixel is removed or inserted improperly or if the Advertiser’s website (where applicable) becomes inoperable, then the Company shall bill Advertiser based on an estimation of Actions applying historical data (for such Advertiser or Campaign and/or similarly situated Advertisers or Campaigns), determined in the Company’s sole discretion. The Company may, at any time, audit the source code of the page in which the tracking pixel is placed. Advertiser will provide the Company with unique tracking links (url’s) that will record the origin of each Action including clicks and sales/leads/registrations by unique tracking link. Advertiser will allow the Company access to online stats of such Actions by unique tracking link or, if online stats are not available, Advertiser shall issue daily reports to the Company for Actions generated through the previous day. Advertiser will ensure the Company’s tracking methods are in place and functioning at all times.
Landing Page Content: Advertiser agrees that it shall not at any time during the term of this Agreement, without providing the Company prior written notice, make any changes to the content (e.g., changes to registration, payment, submission requirements or changes to/removal of the tracking pixel provided by the Company) on web page(s) where visitors shall be sent for purposes of generating Actions or redirect traffic to a different web page(s). To ensure compliance with these terms, Advertiser must notify the Company of such changes in writing at least 72 hours prior to changes taking effect. If Advertiser violates this provision of the Agreement, the Company may i) collect the estimated amount of lost revenues based on historical data in the Company’s sole discretion and ii) terminate the Agreement immediately upon written notice to the Advertiser.
b.CPL Campaigns Definitions:
"Lead Generation Campaign" is a Campaign where a Publisher (which may include Company or a Publisher within the Network) collects requested data on an online form, survey question or web page hosted by Publisher or its agent. "Lead" refers to the underlying user action data generated for a Lead Generation Campaign, as specified in the IO, which is processed by the Company’s proprietary lead processing system and sent to Advertiser in the agreed-upon format.
Lead Requirements: The IO will set forth the required fields and filters (if applicable) that constitute a Lead, which shall be the basis on which the Company shall be paid for CPL Campaigns subject to any Scrub Caps as provided below.
Counting: The Company shall have sole and absolute responsibility for calculation of the Leads that comply with the terms of the IO. Payment will be made based on the Company’s counts, less any leads returned in accordance with any return or scrub provisions set forth herein or on the IO. Advertiser will allow the Company access to online stats of such Leads by unique affiliate identification number or, if online stats are not available, Advertiser shall issue daily reports to the Company for Leads generated through the previous day. The Company shall transfer the Leads in the format agreed upon and tested by both parties. Advertiser agrees to review the Leads and verify receipt within 24 hours of distribution by the Company. Upon transfer of data, Advertiser shall be responsible for payment for any Leads transferred in the same format as the agreed upon test format regardless if the data is received or rejected by the Advertiser’s system.
Transfer of Leads: Once tested and approved by the parties, Advertiser agrees that it shall not at any time during the term of this Agreement, without providing the Company prior written notice, make any material changes to the content or format (e.g., changes to required information, column headers, lead posting detail or acceptance criteria) relating to the submission of the Leads by the Company. To ensure compliance with these terms, Advertiser must notify the Company of such changes in writing at least 72 hours prior to any changes taking effect. If Advertiser violates this provision of the Agreement, the Company may i) request the amount of lost revenues based on historical data or actual gross records attempted to be transmitted, and/or ii) terminate the Agreement immediately upon written notice to Advertiser.
Scrub Cap: The IO will set forth the maximum percentage of Leads that may be returned or "scrubbed" by Advertiser (the "Scrub Cap"). The Scrub Cap will be applied to gross Lead counts submitted through the Company’s proprietary lead processing system, which are subject to the filtering, validation and de-duping requirements of each Campaign.
Non-Viable Leads: Non-Viable Leads shall include Leads that (a) contain no accurate contact info (no valid email address, no valid phone number and no valid postal address); (b) do not reasonably satisfy such other criteria as may be specifically enumerated on the IO or (c) do not exceed the Scrub Cap provided on the IO. Advertiser shall not have to pay for Non-Viable Leads, provided, however, that a Lead shall not be considered a Non-Viable Lead unless it meets the definition provided herein and has been returned by Advertiser to the Company as provided below.
Count Discrepancies: In the event Advertiser disputes the number of Leads and/or claims that the Leads are Non-Viable Leads (as defined above) it shall return the Leads within 48 hours after receipt thereof, which shall be accompanied by a detailed explanation of the rationale for the rejection of such leads. The Company shall, in good faith, consider such documentation, but shall have final authority in determining he correct count. If he Company deems the Leads to be valid, its determination shall be deemed final and binding on the parties. In the event that Advertiser disputes the ultimate determination, it may terminate the IO immediately. If Advertiser elects to terminate this Agreement as provided in this paragraph, Advertiser shall remain liable for all Leads prior to and up to three (3) days after termination.
c. CPM Campaigns: The IO shall indicate if a Campaign is being run on a CPM basis.
Counting: With respect to all CPM campaigns, unless otherwise stated on the IO, the Company shall have the sole and absolute responsibility for calculation of email transmissions and/or impressions. Billing will be based on the Company’s counts of its email server transmissions or ad-server units.
d. CPC Campaigns: The IO shall indicate if a Campaign is being run on a CPC basis.
Counting: With respect to all CPC campaigns, unless otherwise stated on the IO, the Company shall have the sole and absolute responsibility for calculation of Clicks. Billing will be based on the Company’s counts of the Clicks, which shall be derived from a tracking pixel inserted in each advertising creative.
Terms of Payment
The Company may as a pre-condition to agreeing to carry any Campaign require a credit check of the Advertiser prior to start of the Campaign. If after commencing a Campaign, the Company determines, in its sole discretion, that the Advertiser is a credit risk, the Company may without liability, immediately terminate its obligations to provide Services to such Advertiser. Unless otherwise stated in the IO, the Company shall provide an invoice at the end of each month in which a campaign is run. Advertiser agrees to pay the Company is US dollars upon receipt of the invoice. Late payments bear interest at the rate of 1.5% per month, or if less, the highest rate permitted under law. In the event that Advertiser is an agency, both agency and agency's client shall be jointly and severally liable for payment under this Agreement. If Advertiser disputes any charge made under this Agreement, which dispute must be in good faith, Advertiser shall notify the Company in writing ten (10) days from the date of the invoice relating to such charge; failure to notify the Company shall result in the waiver by Advertiser of any claim relating to such disputed charge. Additionally, the Company is entitled to recover any sums expended in connection with the collection of amounts not paid when due, including reasonable attorney’s fees. In the event that the Company requires prepayment, checks for refunds for any such prepayment, net of any and all pending invoices, shall be issued within ten (10) business days after delivery of final campaign statistics. If there is a prepayment and the Company provides services in excess of the prepayment amount, Advertiser shall immediately pay the Company the difference between the prepayment amount and the amount actually owed upon receipt of the invoice therefor. For at least one year after termination of each IO, Advertiser shall keep proper records and books of account relating to the computation of payments to be made hereunder. The Company or its designee may inspect such records to verify reports. Any such inspection will be conducted in a manner that does not unreasonably interfere with Advertiser’s business activities, and except as provided below, shall be conducted no more frequently than once every six months. Advertiser shall immediately make any overdue payments disclosed by the audit, plus applicable interest. Such inspection shall be at the Company’s expense; however, if the audit reveals overdue payments in excess of 5% of the payments owed/paid to date, Advertiser shall immediately pay the cost of such audit, and the Company may conduct another audit during the same six month period.
The Term during which the Company shall provide the Services shall be set forth in the IO. Except as set forth in the IO, any renewal of the IO, acceptance of any additional advertising order, and pricing for any renewal periods shall be at the mutual agreement and acceptance of the parties. Sections 5 to 17 hereof shall survive any expiration or earlier termination of any IO. In addition, any terms that, by their nature, would continue beyond the termination o the IO shall survive such termination.
Representations and Warranties
Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated by the IO, consistent with these T’s & C’s; (b) as of the date each IO is signed by Advertiser, there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these T’s and C’s and the IO; (c) at all times while any IO remains in effect, it shall comply with all applicable laws and regulations. Advertiser represents and warrants that any advertising materials provided or approved by Advertiser hereunder, any content on web sites or web pages that such advertising materials link to, and Advertiser’s products and services (a) do not violate any applicable law, regulation or ordinance; (b) do not infringe in any manner any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (c) do not breach any duty toward or rights of any person or entity, including, without limitation, rights of publicity or privacy, or have not otherwise resulted in any consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (d) will not contain materials or information constituting libel, slander or defamation, or that is threatening or otherwise invades the rights of any third party; or (e) is not false or misleading. Advertiser acknowledges that the Company has no responsibility to review the advertisements provided or produced by the Advertiser. Advertiser also acknowledges that the Network is primarily comprised of third party media service providers and that, as such, advertising placed on the Network shall be subject to third party media service providers’ terms. Advertiser further represents and warrants that it has the right to license to, and hereby does, grant the Company, its licensees and the third party media service providers within the Network, a non-exclusive, worldwide, transferable, royalty-free right and license to Advertiser’s intellectual property in order to publicly perform, publicly display and distribute Advertiser’s advertising materials within the Network. The Company reserves the right to refuse (i) any advertising request, or to cancel any campaign that does not completely conform to every detail, instruction method, and guideline set forth in the IO, and (ii) any advertisement provided or produced by Advertiser that does not arrive five (5) days prior to the campaign start date set forth in the IO. In addition, the Company, in its sole discretion, may refuse the use of any advertisement that it deems inappropriate for any reason or no reason. Advertisements are accepted upon the representation that Advertiser has the right to publish the contents of the advertisement, without infringing upon right of third parties, and that such advertisements are free from any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, cancel bots or other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system data or personal information.
Disclaimer of Warranties
The Services and the Company Produced Materials are provided "As-Is" and "As-Available" and the Company disclaims all warranties of any kind, whether express or implied, except as expressly stated herein. Without limiting the breadth of the foregoing, the Company makes no guarantees or representations with respect to the likelihood of success (sales, registrations, leads, etc) of any advertising campaigns run under any IO.
Use of Data
Limitations of Liability
Except for Advertiser’s obligations set forth in Section 8 (Non-Circumvent), Section 14 (Confidentiality) and 15 (Indemnification), in no event shall either party’s liability exceed the total amount paid to the Company by Advertiser hereunder. The Company shall not be liable for the contents of any advertisements, websites or web pages within the Services, provided that, if arising out of the use of the Company Provided Materials has been approved by Advertiser. In the event that the Company fails to display any advertisements in accordance with the IO (or in the event of any other failure, technical or otherwise), the sole liability of the Company to Advertiser shall be limited to either, in the sole discretion of the Company, a refund for the advertising campaign or placement of "make-good" advertising during a reasonable time thereafter. In no event shall either party be responsible for any indirect, incidental, consequential, special, lost profits, or exemplary damages arising from any aspect if the advertising relationship provided herein. Without limiting the foregoing, the Company shall have no liability for any failure or delay resulting from the conditions beyond the Company’s control.
Except as otherwise provided herein, the Company and Advertiser each acknowledge and agree that all information, data, materials, or technology communicated to either the Company or Advertiser and marked as "Confidential" or ‘Proprietary" or could reasonably be considered confidential under the circumstances of its of its disclosure by the other party hereunder ("Confidential Information") was and shall be received in confidence, shall be used only for purposes of this Agreement, and that no such Confidential Information shall be disclosed by either of the parties hereto, its agents or employees without the prior written consent of the other party, except as may be necessary by reason of legal, accounting or regulatory requirements including requirements of independent auditors and bank examiners applicable to such party and its business. The Company’s Confidential Information includes, but is not limited to (i) Publishers comprising the Network; (ii) media rates negotiated by the Company; (iii) information concerning the Company’s proprietary technology and its technology providers; and (iv) the Company’s media planning and buying methodologies. Except to the extent otherwise required by applicable law, the parties’ obligations under this section do not apply to information that (a) is or becomes publicly known, through no fault of the receiving party; (b) the receiving party can demonstrate was known by the receiving party prior to disclosure hereunder; (c) the receiving party can demonstrate is disclosed to the receiving party by a third party with no violation of confidentiality to the disclosing party; and (d) the receiving party can demonstrate is developed by the receiving party independent of any use of information disclosed by the disclosing party.
The Company agrees to indemnify, defend and hold harmless Advertiser and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorney’s and expert fees and costs) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (Collectively "Claims") arising out of any material breach by the Company of any duty, representation or warranty under this Agreement. Advertiser is solely responsible for any legal liability arising out of or relating to: (i) the content and other material displayed on any advertisement provided by Advertiser; (ii) any content or material to which users can link through any advertisement provided by Advertiser; or (iii) Advertiser’s trademarks, service marks and logos. Advertiser agrees to indemnify and hold harmless the Company and its officers, directors, agents, its Publishers and employees against any and all Claims arising out of: (a) any material breach by the Advertiser of any duty, representation or warranty under this Agreement; (b) publication of any advertisement supplied by or approved by Advertiser for use hereunder (including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, false or deceptive advertising or sales practices); or (c) any material of Advertiser to which users can link through such advertisements. Each party agrees to (i) promptly notify the other party in writing of any Claim and give that other party the opportunity to defend or negotiate a settlement of any such Claim at that party’s expense, and (ii) cooperate fully with the other party, at that party’s expense, in defending or settling such Claim. Each party reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder.
Either party may terminate any IO at any time for any reason upon fifteen (15) days prior written notice to the other party. Such termination shall not relieve Advertiser of the obligation to pay any amounts then due and owing to the Company through the effective date of termination. If Advertiser terminates any campaign being run through the Network, within 48 hours of receipt of the written notice of termination, the Company shall promptly send a notice to its Publishers advising them of the termination and shall terminate the availability of such Campaign to its Publishers. Upon receipt of the notice of termination, the Publishers shall have up to seven (7) days to fully terminate the Campaign. Advertiser shall be responsible for payment of any amounts owed up to 10 days after the termination date.
No conditions other than those set forth in the IO or these T’s and C’s shall be binding on the Company unless expressly agreed to in writing by the Company. In the event of any inconsistency between the IO and T’s and C’s, the IO shall control. These T’s and C’s, together with the IO, (i) shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts law; (ii) may be amended only by written agreement executed by an authorized representative from each party; and (iii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The parties irrevocably consent to the exclusive jurisdiction of the courts of the State of California, County of Los Angeles and the federal courts situated in the Central District of California in connection with any action arising between the parties. If any provision of this agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by a party of any default or breach of the agreement by the other party shall not constitute a waiver of any other or subsequent default or breach. Advertiser may not resell, assign or transfer any of its rights hereunder. Advertiser agrees that the Company may include Advertiser’s name (including any trade name, trademark, service mark and logo) and any advertisement provided hereunder in its marketing materials and sales presentations.