Terms of Services Ad Exchange Publisher
STANDARD TERMS AND CONDITIONS to the Insertion Order
The following Standard Terms and Conditions (“Terms and Conditions”) shall be deemed to be incorporated into any Insertion Order (“IO”) entered into between Adtelligent Inc (“Company”) and the Publisher, identified in such IO. In the event of conflict between the Terms and Conditions and the terms of the IO, the latter shall prevail. The IO and these Terms and Conditions constitute a binding contract between Company and Publisher and are collectively referred to herein as the “Advertising Agreement”.
1.1. Company will create and deliver all content required for any Advertisement (“Ad”) to Publisher in the form requested by Publisher and in accordance with any specifications and policies set-forth by Publisher prior to publication.
Distribution of Ads.
2.1. Positioning of the Ads is at the sole discretion of Publisher and its affiliates, except as otherwise specified in the IO.
2.2. Publisher will comply with the provisions of Advertising Agreement, including all Ad placement restrictions.
2.3. Any methods and or means direct or indirect, intentional, accidental, incidental, that artificially and/or fraudulently inflate the volume of impressions is strictly forbidden. Additionally Company may withhold amounts relating to Publisher’s Earnings indicated in Section 9.1. of these Terms and Conditions, if Company in its sole reasonable discretion, believes the performance related to them is fraudulent or invalid in nature; or may withhold or recover mentioned amounts from Publisher, if Company was charged or credited back in their respect by any Company’s Clients (demand partners). Payment amounts displayed in Company’s reporting systems may be adjusted at any time and may not reflect final payment to Publisher as per adjustments made hereunder.
3.1. Publisher will not be required to publish any Ad that is not in accordance with its policies, restrictions (as set forth in the Advertising Agreement) or specifications as determined in its sole discretion.
3.2. Notwithstanding the foregoing, Publisher’s policies, specifications and/or recommendations with respect to Ads should not be construed as legal advice, or as sufficient guidelines to ensure that such Ads comply with applicable law, and Company shall be solely responsible for the content of its Ads.
4.1. Company undertakes that all Ads used will not include or promote illegal content (such as, but not limited to: Adult/pornography, gambling, extreme/graphic/explicit violence, profanity, hate, illegal narcotics, content which infringes upon third party rights) and will not include spyware/malware/warez.
4.2. Publisher or its affiliates will not distribute Ads under the Advertising Agreement on any following Website:
- websites which contain material that infringes the rights of others (including but not limited to copyright and other intellectual property rights) or which promotes copyright piracy (i.e., unauthorized MP3s, roms, ‘warez’, emulators, or cracks, etc.);
- websites with pornography, adult content, sexual or erotic material or websites that contain links to such content;
- websites with gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm;
- websites promoting any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality-based or personal, etc.) ;
- websites that participate in or transmit inappropriate newsgroup postings or unsolicited e-mail (spam) websites promoting any type of illegal substance or activity (i.e., how to build a bomb, hacking, ‘phreaking’, etc.);
- websites with illegal, false or deceptive investment Advice and money-making opportunities;
- websites that provide incentives of any nature to require or encourage users to click on Ad banners (i.e., charity, sweepstakes, etc.);
- websites that are under construction or incomplete websites with extremely limited audiences or viewership websites with any type of content reasonable public consensus deems to be improper or inappropriate
- websites that in any way that violates anyapplicable local, national, or international law or regulation of any applicable jurisdiction.
4.3. At any time Company may investigate any Publisher’s website for violation of the Advertising Agreement. If Company determines that Publisher’s website(s) includes any undesirable content, Company may discontinue the Ad campaign upon notice, and Publisher shall immediately cease delivering Ads on such website(s). In no event, will Company or its Clients be obligated to pay for Ads served through Websites containing undesirable content after Publisher’s receipt of such notice from Company.
5.1. Non human, robotic or suspect traffic, as determined by 3rd party validation tools & services deployed by Company will be used for positioning of the Ads and any fraudulent traffic, as determined by said 3rd party verification services & tools (including but not limited to Forensiq, Pixalate, ProtectedMedia, DoubleVerify, etc), will not be used for positioning of the Ads and paid for and subject to retroactive chargeback.
5.2. Moreover, placement and positioning of the Ads by Publisher or its affiliates in respect of the traffic, mentioned in the Section 5.1. of these Terms and Conditions, is strictly forbidden and grounds for immediate termination without pay.
6.1. Company warrants and represents that:
- it has all right, title and interest in and to the Ads that it places;
- the use of the Ads by Publisher and its affiliates as contemplated and authorized hereunder will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy;
- all Ads will comply with all applicable laws, regulations and ordinances; and
- all of the information provided by Company to Publisher is correct, complete and current.
6.2. Company further represents and warrants that any website linked to Company’s Ads:
- complies with all laws and regulations in any state or country where the Ad is displayed;
- does not breach and has not breached any duty toward or rights of any person or entity including, without limitation, rights of publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and
- is not false, misleading, defamatory, libelous, slanderous or threatening.
7.1. Publisher represents and warrants to Company that:
- Publisher’s or its affiliate’s website(s) do not, and will not during the term of the Advertising Agreement, contain any material described in Section 4.2 of these Terms and Conditions;
- Publisher’s or its affiliate’s website(s) are free of any “worm”, “virus” or other device that could impair or injure any person or entity;
- it is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply;
- it will conduct its business in compliance with all applicable laws, rules and regulations;
- it has full legal power and authority under its organizational documents to enter into this Advertising Agreement and to perform the obligations contained herein;
- the execution of the Advertising Agreement and the performance of its obligations by Publisher will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which Publisher is a party or subject.
8.1. Company shall have the sole responsibility for calculation of statistics (reporting). Publisher acknowledges that statistics provided by Company are the definitive and binding measurements of Publisher’s performance on any obligations provided in the Advertising Agreement and no other measurements or usage statistics shall be accepted by Publisher or have bearing on the Advertising Agreement.
8.2. Company will provide Publisher with access to reporting within 48 hours depending on the type of Ads to enable Publisher to view the estimated revenues and impressions due to it under a given Advertising Agreement.
8.3. Final revenue & impression count numbers (statistics) will be determined and adjudicated using the Company’s reporting system within 10 days after the end of the reporting month.
9.1. Within the time period specified in the IO, Company will pay Publisher its earnings («Publisher Earnings») for Company Ad Marketplace Ad impressions served on Publisher’s web properties in accordance with the provisions of the IO during the applicable calendar month and for which Company has been paid by the Company’s Clients (demand partners) with respect to the winning bids by Ad buyers derived by the Company Ad Marketplace for the display of such Company’ Ad impressions on Publisher’s web properties («Ad Collected Revenue»). Publisher acknowledges that Company operates as an Ad exchange and is therefore reliant on payment by Clients to Company before Company will pay Publisher. Accordingly, payment for each Company Ad Marketplace Ad impression served on Publisher’s web properties is strictly subject to and conditional upon the payment of Ad Collected Revenue for the same Ad impression by the relevant Company’s Client. In the event that Company does not receive full payment of the Ad Collected Revenue, Company will not make any corresponding payment to Publisher.
9.2. Publisher understands and agrees that Company acts solely as an agent for the Company’s Clients; and that Company shall only be liable to Publisher for Publishers Earnings based on payments from Company’s Clients, which has received without restrictions. Company agrees to make every reasonable effort to bill, collect and clear payment from the Company’s Clients on a timely basis. Company reserves the absolute right not to make any payments if the Publisher violates any of the terms of the Advertising Agreement.
9.3. All amounts under this Advertising Agreement will be invoiced in U.S. dollars and paid by wire transfer to an account to be designated by Publisher in the invoice unless otherwise agreed in writing by the Parties hereto.
9.4. Publisher will issue invoices to Company on a calendar monthly basis, in the month following the service provision, based on Company’s reporting data set forth in Section 8 of these Terms and Conditions; and Company shall execute payment of Publisher Earnings on the basis of mentioned invoices, timely received from Publisher.
9.5. Company assumes no responsibility for paying income taxes on behalf of Publisher. Publisher assumes complete and sole responsibility for any taxes owed or which may be due in connection with Publisher’s activities under the Advertising Agreement, including but not limited to sales and use taxes, goods and services taxes, value-added taxes and withholding taxes, and agree to indemnify and hold Company and its employees, affiliates and representatives harmless from any such taxes. Company shall provide Publisher with appropriate tax information, including earnings on Form 1099. Publisher residing in the United States agree to provide their Social Security number or Federal Employee Identification Number to Company for tax reporting purposes. In no event will payments be made on accounts that have not provided proper tax identification information. Such information will be used for no purpose other than for tax reporting purposes. International Publishers may be asked to complete appropriate forms for tax purposes.
10.1. Both Parties agree to keep all communications exchanged between the Parties and this Advertising Agreement and all of its terms, numbers and information, confidential, and not disclose any of it to any third party, except on a confidential basis to an employee, agent, client, or partner who has a legitimate need to know to enable the Party to perform under the Advertising Agreement, and who is subject to these non-disclosures and use restrictions. Publisher agrees to keep all and any information which is given by Company confidential, including but not limited to information about keywords, costs, conversions, and any other statistics, that are not publicly available, unless otherwise approved by Company. Each Party will protect the confidential information of the other party in the same manner that it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care.
10.2. 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.
11.1. For the term of the Advertising Agreement, Company hereby grants to Publisher and its affiliates and partners a non-exclusive, royalty-free, worldwide license to: (a) use, perform and display all Ads delivered hereunder in accordance with these terms; and (b) use all associated Company intellectual property in connection therewith.
11.2. Title to and ownership of all intellectual property rights of the Ads and associated Company intellectual property shall remain with Company or its third party licensors. In addition, Company agrees that Publisher may include Company ‘s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on Publisher’s Company list and in its marketing materials and sales presentations. Publisher is the sole owner of any and all intellectual property rights associated with the Publisher’s platform, other than Company’s trademarks, logos, and other pre-existing Company intellectual property displayed via Publisher’s platform.
12.1. THE PUBLISHER’S PLATFORM AND ANY RELATED SERVICES PROVIDED HE-REUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, PUBLISHER’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE.
Limitation of Liability.
13.1. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY HEREIN, THE LIABILITY OF COMPANY FOR ANY CLAIM WHATSOEVER RELATED TO THE ADVERTISING AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE GREATER OF THE TOTAL AMOUNT OF PAYMENTS THEREFORE PAID BY COMPANY DURING THE PREVIOUS SIX MONTH PERIOD TO PUBLISER.
14.1. Company agrees to defend, indemnify and hold harmless Publisher and its affiliates and their respective principals, directors, officers, employees and agents from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred as a result of any claim, judgment or proceeding relating to or arising out of:
(a) Company’s breach of the Advertising Agreement;
(b) the content of the Ads and any and all claims made therein; or
(c) the products, services or content linked to from the Ads.
14.2. Publisher agrees to defend, indemnify and hold harmless Company and its affiliates and their respective principals, directors, officers, employees and agents from and against any and all losses, damages, liabilities and claims, and all related expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) and costs related to, arising from, or in connection with any third-party claim, related to, arising from, or in connection with the actual or alleged:
(a) Publisher’s breach of the Advertising Agreement;
(b) breach of any of Publisher’s representations, warranties, obligations, and/or covenants set forth herein;
(c) Publisher’s services linked to the Ads;
(d) Publisher’s gross negligence, willful misconduct or fraudulent actions.
14.3. Indemnified Party shall promptly notify indemnifying Party in writing after it becomes aware of any such claims, but failure to give such notice shall not relieve indemnifying Party of its indemnity obligations hereunder unless the Indemnifying Party has been materially prejudiced by such failure. Indemnifying Party shall have exclusive control over the settlement or defense of such claims or actions, except that indemnified Party may appear in the action, at its own expense, through counsel reasonably acceptable to indemnifying Party, only in the event it is mutually determined by the Parties that an actual conflict of interest would exist by indemnifying Party’s representation of indemnified Party and indemnifying Party in such action. The indemnified Party will, if requested by the indemnifying Party, give reasonable assistance (in a manner consistent with the Parties’ respective confidentiality obligations and preservation of attorney/client, work product, and other privileges) to the indemnifying Party in defense of any claim. The indemnifying Party will reimburse the indemnified Party for any reasonable attorney expenses directly incurred from providing such assistance. Indemnifying Party shall be entitled to retain all monetary proceeds, attorneys’ fees, costs, and other rewards it receives as a result of defending or settling such claims. The indemnifying Party will have the right to consent to the entry of judgment with respect to, or otherwise, settle, an indemnified claim with the prior written consent of the indemnified Party unless such judgment materially prejudices or obligates the indemnified Party, at which point the indemnified Party shall be consulted before the matter is finalized. In the event indemnifying Party fails to promptly indemnify and defend such claims and/or pay indemnified Party’s expenses, as provided above, indemnified Party shall have the right to defend itself, and in that case, indemnifying Party shall reimburse indemnified Party for all of its reasonable attorneys’ fees, costs, and damages incurred in settling or defending such claims within thirty (30) days of each of Indemnified Party’s written requests.
15.1. All notices, consents and approvals required or permitted to be given under the Advertising Agreement shall be delivered in writing to the address set forth in the Order either by hand, by courier, by facsimile or by electronic mail.
15.2. Notice will be deemed to have been received and effective: (a) at the time of delivery if delivered personally or by courier, (b) if delivered by facsimile transmission when the appropriate telecopy confirmation is received; (c) upon the receipt of the electronic transmission by the server of the recipient when transmitted by electronic mail, or (d) within three (3) days after deposit with an internationally recognized express delivery service.
15.3. Each Party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other notice in the manner herein set forth. It is agreed that rates and campaigns shall be agreed via emails if not otherwise specified in the IO.
Term and Termination.
16.1. Subject to the early termination rights of either Party herein, the term of the Advertising Agreement shall be two (2) year from the date first written above; and it shall renew automatically for subsequent two-years periods unless either Party notifies the other at least 30 days before the end of the expiration date of the Advertising Agreement, that it does not wish to renew the Agreement.
16.2. The Parties hereby agree that any Party may terminate the Advertising Agreement at any time, with or without cause and without any liability to the other Party whatsoever by giving 24 hours prior written notice of termination to the other Party.
16.3. In the event that the Advertising Agreement is validly terminated as provided herein, then the Parties shall be relieved of their duties and obligations arising under the Advertising Agreement after the date of such termination and such termination shall be without liability to the Parties; provided, further, however, that Publisher has an outstanding account balance, Company will pay Publisher all legitimate money due during the next billing cycle and nothing in this Section 16.3 shall relieve the Parties of any liability for a breach of the Advertising Agreement.
17.1. Governing Law and Jurisdiction. This Advertising Agreement shall be governed by and construed in accordance with the Laws of the State of New York without reference to conflicts of law rules and principles. This Advertising Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Each Party irrevocably consents that the competent federal and state courts located in the state New York shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement.
17.2. Entire Agreement; Waiver. This Advertising Agreement, including any written nondisclosure agreement previously executed by the Parties, set forth the entire agreement and understanding between the Parties as to the subject matter hereof and supersedes all prior discussions, agreements and understandings of any kind, and every nature between them. The IO shall not be changed, modified or amended except in writing and signed by both Parties.
17.3. Binding Effect. This Advertising Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties hereto and their respective heirs, legal representatives, successors, and assigns.
17.4. Severability. The provisions of this Advertising Agreement shall be deemed severable. If any provision of this Advertising Agreement shall be held to be illegal, invalid or unenforceable for any reason under present or future laws effective during the term of this Advertising Agreement, the remaining provisions shall continue to be valid and enforceable.
17.5. Independent Contractor. The Parties are independent contractors. Nothing in this Company’s Agreement shall be construed to create a joint venture, partnership or agency relationship between the Parties. Neither Party has any authority of any kind to bind the other in any respect whatsoever and neither party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other Party’s name or on its behalf.
17.6. Legal Expenses. The prevailing Party in any legal action, including arbitration, brought by one Party against the other and arising out of this Advertising Agreement shall be entitled, along with any other rights and remedies it may have, to reimbursement for its expenses, including court fees and reasonable attorney’s fees. Such fees may be set by the court in the trial of such action or may be enforced in a separate action brought for that purpose. Such fees shall be in addition to any other relief that may be awarded.
16192 COASTAL HWY,
19958 United States