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Section 1. Insertion Orders.
From time to time, you may submit orders through the online portal for Advertigo to run advertisements (each order, an "Order"). If such Order is accepted, Advertigo will deliver advertisements provided by you ("Ads") on websites or other properties on which Advertigo places ads (the "Advertigo Inventory").
Section 2. Ads and Deliverables.
2.1 Placement of Ads. Subject to the terms of this Agreement, Advertigo will deliver Ads in accordance with the terms of the applicable Order. In the event that your bid for advertising is not accepted by Advertigo, Advertigo will not be obligated to deliver any Ads. In each Order, you will specify the amount and type of advertising inventory on the Advertigo Inventory that you are purchasing (e.g., impressions, clicks, duration or other desired actions or metrics with respect to Ads) (the "Deliverables"). Advertigo may determine the size, placement, positioning and any other aspects of the presentation of any Ads in its sole discretion. Scheduling of delivery of any Ads is subject to availability and may not be continuous.
2.3 Contests. For any contest, sweepstakes, coupon or other promotion offered or promoted by or on behalf of you on the Advertigo Inventory ("Promotion"), you (or a third party contracted by you and for which you are solely responsible) will perform and be solely responsible for such Promotion, including administration of the Promotion, ensuring that the Promotion complies with any and all applicable laws and regulations and the Promotions Guidelines, setting and enforcing official rules and offer terms, collecting entries, drawing, selecting and notifying winners and timely procuring and fulfilling prizes, premiums or discounts that may be offered in connection with such Promotion (these and other similar obligations the "Promotion Obligations"). No approval by or assistance from Advertigo in connection with a Promotion (including as may be specified in an Order or elsewhere) will reduce or satisfy the Promotional Obligations, and you will remain solely responsible for the Promotion Obligations. Without limiting the foregoing, Advertigo's review or approval of the official rules, offer terms or regulations for any Promotion will not constitute a legal opinion as to the legal appropriateness, accuracy or adequacy of those rules or their manner of use, nor a waiver of Advertigo's indemnity rights under this Agreement.
2.4 Ad Delivery. Advertigo will determine all measurements relating to Deliverables in accordance with its standard tracking methodologies. All payments due hereunder will be based solely on such measurements.
2.5 Performance-Based Advertising Orders. For all Orders where inventory is invoiced on a cost per click ("CPC") or other performance-related basis, the following additional terms will apply: (a) the Order will specify the agreed upon CPC or other performance-based rate that will apply to such Order and (b) Advertigo does not guarantee any amount of performance-related Deliverables, even if indicated on an Order.
2.6 Failure to Deliver and Makegoods/Remedies. If Advertigo fails to deliver any Deliverables in accordance with the terms of an Order, your sole and exclusive remedy will be limited to the following, which Advertigo may choose in its sole discretion: (a) placement of the Ads at a later time, and/or (b) an extension of the term of the Order with a refund representing any remaining undelivered Ads at the end of such extended term. Advertigo will have no obligation to continue to deliver any such Ads after the term of the Order if the Order has been terminated by reason of your breach pursuant to Section 4.
Section 3. Payments for featured (top) ads and Reporting.
3.1 Payments. You will pay all amounts specified in an accepted Order, along with any applicable taxes, by providing a valid credit card or other means authorized in writing by Advertigo. To the extent you make a payment in a currency Advertigo does not accept, you agree to pay all fees associated with currency conversion. If you have provided a credit card, you authorize Advertigo to charge the credit card for any and all amounts due upon the placement of the Order or thereafter. Additionally, if the issuer of the credit card seeks to recover from Advertigo any amounts received by Advertigo from the issuer, you will immediately remit to Advertigo all amounts necessary to comply with the issuer's request and any costs and expenses incurred by Advertigo in connection therewith. You further authorize Advertigo to obtain pre-approval from your credit card issuer and to, either directly or through third parties, make any inquiries that Advertigo considers necessary to validate your identity and creditworthiness. Interest will accrue on any past due amounts at the rate of the lesser of 1% per month or the lawful maximum. If your payment method fails or your account is past due, Advertigo may collect past due amounts using other collection mechanisms, and you agree to pay all expenses associated with such collection, including reasonable attorneys' fees. You are responsible for maintaining the security of your account (including your user name and password), and you understand that you will be charged for any orders placed by or through your account, even if such orders were not authorized by you. Advertigo will not be liable for any loss or damage arising from your failure to maintain the security or confidentiality of your account. To the fullest extent permitted by law, you waive all claims against Advertigo related to charges (including any claims related to suspected invalid clicks or other actions) unless claimed within 60 days after the charge. To the extent Advertigo makes such ad units available, you will be solely responsible for all fees associated with serving any "rich media" Ads.
3.2 Cancellation. If you cancel any portion of an Order pursuant to Section 4, you agree that Ads may continue to run for up to seven (7) days after Advertigo receives the cancellation notice, and that you must still pay for such Ads (along with such Ads that were served prior to your cancellation.
Section 4. Terminate.
Either party may terminate this Agreement at any time upon written notice to the other party if the other party materially breaches this Agreement and such breaching party does not cure the same within 30 days after written notice thereof from the non-breaching party. In addition, you may cancel an Order at any time through the online, self-service interface. Sections 2.2 (Ad Content), 2.3 (Promotions), 2.6 (Failure to Deliver and Makegoods), 3 (Payments and Reporting), 4 (Termination), 6.4 (Persistence), 7 (Confidentiality), 8.4 (Additional Liability), 9 (Representations and Indemnification), 10 (Limitation of Liability), 12 (Disputes) and 13 (General) of these Terms and Conditions, together with any accrued but unpaid payment obligations of either party, will survive any expiration or termination of this Agreement.
Section 5. Advertigo Control of Advertigo Inventory.
5.1 Advertigo Inventory Design. You acknowledge and agree that Advertigo is, and will at all times be, the "executive producer" of the Advertigo Inventory, and will be responsible for the design, layout, look-and-feel, and maintenance of any and all aspects of the Advertigo Inventory. Advertigo may, in its sole discretion, redesign, delete or replace any pages, groups or other areas on which Ads will be displayed.
5.2 Rejection/Removal of Ads. Advertigo may, in its sole discretion, reject or remove any Ad at any time, with or without notice, which (a) violates this Agreement, the content restrictions or any other provision of the Advertigo Guidelines or (b) which Advertigo otherwise determines to be inappropriate for any reason in its sole discretion, whether or not such Ad was previously accepted.
Section 6. Licenses.
6.2 Publicity. During and after the term of this Agreement, Advertigo may use Ads, your name and your logo, and may reference the type of advertising, flight dates and any measurements relating to Deliverables for the advertising campaign delivered on your behalf, in a factual and non-disparaging manner, for promotional or marketing purposes. Advertigo may also reference any information publicly available about you on or off the Advertigo Inventory.
6.3 Reservation of Rights. As between Advertigo and you, you retain all rights in and to your Ads (including all of your Trademarks and all other related intellectual property rights embodied therein), and, upon the termination of this Agreement, all rights granted to Advertigo hereunder with respect to such Ads will cease, except as otherwise provided herein. You will not use, reproduce or display any Trademarks of Advertigo in any manner without Advertigo's prior written consent.
6.4 Persistence. Notwithstanding anything to the contrary in this Agreement, You acknowledge and agree that Ads and other Trademarks that are used or displayed on the Advertigo Inventory may continue to be used and displayed on the Advertigo Inventory, even after you have completed the ad campaign or terminated this Agreement or the applicable Order, as such Ads or Trademarks may have been incorporated into user profiles, news feeds or other features, and that such usage and display may continue indefinitely.
Section 7. Confidentiality.
7.1 Confidential Information. No information disclosed by you pursuant this Agreement or in any Order shall be deemed confidential.
7.2 Feedback. You may from time to time provide ideas, suggestions or other feedback regarding the Advertigo Inventory (including as to improvements or modifications thereto). Both parties agree that except as otherwise agreed by Advertigo in a signed writing, such ideas, suggestions and other feedback is not confidential or proprietary, and that Advertigo will be entitled to use, implement disclose and otherwise exploit such feedback in any manner, without restriction or duty to compensate you or account.
7.3 Public Disclosures. Except as permitted by Section 6.2, neither party will issue any press releases, or otherwise make any public statements or communications regarding this Agreement or the relationship of the parties without the other party's prior written consent.
Section 8. Applicable to Advertising Agencies.
In the event that you are an advertising agency or other entity representing an Advertiser (as defined in Section 8.2) or placing Ads on someone else's behalf, you agree that this Section 8, along with all other terms in this Agreement, directly apply to and bind you.
8.1 Advertiser Definition. As used herein, "Advertiser" means the individual or entity on whose behalf you are placing Ads on the Advertigo Inventory.
8.2 Additional Representations and Warranties. You represent, warrant and covenant that: (a) you are the authorized agent of Advertiser and have the legal authority to enter into this Agreement and any Order on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser's accounts (these rights "Agency Rights"); (b) you have or will enter into a written agreement with Advertiser (i) that obtains Agency Rights; (ii) that binds the Advertiser to terms as protective of Advertigo as this Agreement and (iii) to which Advertigo is an intended third party beneficiary with respect to Ads delivered on the Advertigo Inventory (the written agreement between Advertiser and Client containing the requirements in this Section 8.2(b), the "Advertiser Agreement"); and (c) you will not, without Advertigo's prior written consent: (i) make any representation, guarantee, condition, or warranty concerning the Advertigo Inventory, or that you are an affiliate or partner of Advertigo, (ii) make any commitments (for example, guarantees as to placement of ads) to an Advertiser or potential Advertiser beyond Advertigo's obligations under this Agreement, (iii) negotiate any terms or conditions related to the Advertigo Inventory which are inconsistent with this Agreement, or (iv) engage in any telesales or telemarketing in connection with the Advertigo Inventory.
8.3 Agency Agreement and Relationship Termination. Upon Advertigo's request, you will immediately deliver to Advertigo each applicable Advertiser Agreement. If your relationship with an Advertiser terminates, you agree that Advertigo may contract directly with such Advertiser to allow such Advertiser to continue to place Ads on the Advertigo Inventory and obtain information related to Ads run on its behalf, including account and performance history, and that you will no longer have access to such Advertiser's account.
8.4 Additional Liability. Without limiting any other provision of this Agreement, any acts or omissions by any Advertiser in violation of this Agreement will be deemed a breach of this Agreement by you, and both you and Advertiser will indemnify, defend, and hold Advertigo harmless from and against all damages, liabilities, costs, and expenses that Advertigo may incur as the result of such violation. In addition, you acknowledge that Advertigo may but will in no event be obligated to directly contact any Advertiser and directly enforce the terms of any applicable Advertiser Agreement, including if Advertigo has not received payment for such Advertiser's account within 30 days from the date of the applicable payment due date.
Section 9. Representations and Indemnification.
9.1 Representations and Warranties. You represent and warrant that: (a) you have authority to enter into this Agreement on behalf of the entity for which the Ad is being placed; (b) you are duly organized, validly existing, and in good standing under the laws of the jurisdiction in which you were organized; (c) the execution and delivery of this Agreement, and the performance of the transactions contemplated hereby, are within your corporate powers, and have been duly authorized by all necessary corporate action; (d) your performance of this Agreement, and Advertigo's exercise of its rights under this Agreement, will not result in a violation of any agreement or other obligation by which you are bound; (e) the Ads will not contain any material which violates the Advertigo Guidelines or which is otherwise unlawful, defamatory or obscene, or which infringes or violates any third-party rights (including any intellectual property rights or privacy or publicity rights) or which may encourage a criminal offense or otherwise give rise to civil liability; and (f) you will comply with all applicable laws and regulations in your performance of this Agreement (including all applicable (i) privacy and data protection laws and (ii) regulations and laws and regulations related to Promotions).
9.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Advertigo DOES NOT WARRANT THAT THE Advertigo INVENTORY OR ITS DELIVERY OF ADVERTISEMENTS HEREUNDER WILL BE ERROR-FREE, UNINTERRUPTED OR CONTINUOUS. WITHOUT LIMITING THE FOREGOING, Advertigo WILL HAVE NO LIABILITY FOR CLICK FRAUD OR OTHER IMPROPER ACTIONS OF THIRD PARTIES WHICH MAY AFFECT THE COST OF ADVERTISING. THE FOREGOING DISCLAIMER OF WARRANTY IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER, AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH DISCLAIMER.
9.3 Idemnification. You will indemnify and hold harmless Advertigo and its affiliates, and each of their officers, directors, employees, and agents (collectively, the "Indemnified Parties"), from and against any and all expenses, damages and losses of any kind (including reasonable legal fees and costs) incurred by any of the Indemnified Parties arising out of or in connection with any claim by a third party (a "Third Party Claim") arising from or related to: (a) any actual or alleged breach of your representations or warranties under Sections 9.1 and 8.2 (as applicable); (b) any Promotion, including any claims for any delivery of, non-delivery of, defects in, use of or inability to use any prizes or any violation by the Promotion of any applicable law, rule or regulation; (c) any Ad or any material to which users can link, or any products or services made available to users, through the Ads. Advertigo will notify you promptly of any Third Party Claim for which it seeks indemnification and will permit you to control the defense of such Third Party Claim with counsel chosen by you; provided, that you will not enter into any settlement that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of any Indemnified Party without Advertigo's prior written consent.
Section 10. Limitation of Liability.
Advertigo WILL NOT BE LIABLE FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Advertigo'S TOTAL AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU, TO Advertigo DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM.
Section 11. Force Majeure.
Excluding payment obligations, neither party will be liable for any delay or default in the performance of its obligations if such delay or default is caused by conditions beyond its reasonable control, including fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures or acts of God (collectively, "Force Majeure"). If performance is delayed by more than 30 days as a result of any Force Majeure, either party will be entitled to terminate this Agreement by written notice delivered at any time prior to the other party's resumption of performance of this Agreement.
Section 12. Disputes.
The laws of the State of California, without regard to principles of conflict of laws, will govern any dispute related to this Agreement or an Order. You agree that, except as otherwise provided for in this Section 12, all claims and disputes that arise out of or relate in any way to this Agreement or your placement of Ads on the Advertigo Inventory will be resolved by binding arbitration by a single arbitrator in Santa Clara County, California, administered by JAMS pursuant to its Comprehensive Arbitration Rules. The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. Claims for injunctive or other equitable relief may also be brought in a court of law. For purposes of such relief or remedy, or any other court proceeding under this Section 12, you agree to submit to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California.
Section 13. General.
Except as specifically provided herein, if any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect and the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement and the rest of the Agreement will remain in full force and effect. The failure by either party to enforce any provision of this Agreement will in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of such party to enforce such provision thereafter. You may not assign or otherwise transfer (including by any reorganization, change of control, merger, acquisition or sale or transfer of all or part of its assets or business) your rights or obligations under this Agreement including any Order without the prior written permission of Advertigo, and in no event will Advertigo be obligated to serve Ads for any third party. Advertigo may freely assign or otherwise transfer its rights and obligations under this Agreement including any Order, in whole or in part. Any purported assignment or other transfer in violation of this provision will be null and void. This Agreement will be binding upon, and inure to the benefit of the parties and their permitted respective successors and assigns. Each of Advertigo's affiliates are express and intended third party beneficiaries of this Agreement and may enforce any of its terms and exercise any of the rights to the same extent as Advertigo. You and Advertigo are independent contractors, and nothing in this Agreement is intended to or does create any type of joint venture, partnership or employer/employee relationship between You and Advertigo or its affiliates. Advertigo may provide effective notice to you by sending an email to the email address specified in your account, and the notice will be deemed received when sent. This Agreement (including any Orders, agreements, policies and other documents incorporated by reference herein), constitutes the entire agreement between you and Advertigo regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement or communication between you and Advertigo, whether written or oral.