ONLINE ADVERTISING TERMS AND CONDITIONS
These terms and conditions (“Terms and Conditions”) govern the relationship between DigitalRelevance, Inc. (DRInc) and the agency and advertiser set forth on the insertion order (the “Insertion Order”) that is attached to or references these Terms and Conditions. These Terms and Conditions apply to advertising (“Ads”) to be displayed on Relevance.com and/or the other sites, third-party networks, digital services and/or applications described in the Insertion Order, and to the digital products and services (such as mobile websites and QR codes) provided by DRINC as described in the Insertion Order (collectively, “Digital Services”). In the event the Insertion Order includes Ads or Digital Services that will be displayed or fulfilled by a third-party vendor, those Ads or Digital Services are also subject to the terms and conditions required by such third-party vendor. In the event of any conflict between these Terms and Conditions and third-party vendor terms and conditions, these Terms and Conditions shall control. DRINC and any third-party vendor that will be displaying the Ads or providing the Digital Services are referred to collectively as the “Publishing Party”. Unless expressly agreed to in writing by DRINC or indicated on a signed Insertion Order, no other terms or conditions appearing in contracts, orders, insertion instructions or otherwise will be binding on the Publishing Party. All Insertion Orders are subject to DRINC’s acceptance.
1. The Publishing Party reserves the right to reject, remove or cancel any Ads, space reservation, position commitment or Digital Services at any time and for any reason in its sole discretion.
2. All Ads and the content of Digital Services will be created using text, photographs, logos, content, trademarks, trade dress elements, and other intellectual property provided by advertiser or agency (“Advertising Materials”). By providing Advertising Materials to DRINC, advertiser and, if provided by an agency, agency represent that it/they has the right to provide such Advertising Materials, and have the Publishing Party distribute, reproduce, display, and republish such Advertising Materials, without violating the rights of any third party. Advertising Materials must be provided in a form and format prescribed by DRINC and within the deadlines prescribed by DRINC. DRINC shall have no liability for delays in performance, or failure to provide Ads or Digital Services, resulting from any delays caused by advertiser or agency, and DRINC shall have no liability for the content of any Ads or Digital Services.
3. Each Insertion Order covers only Ads relating to, and Digital Services for, the regular business owned by advertiser. No subletting, brokering, or assignment of Ads or Digital Services under any Insertion Order is permitted without the consent of DRINC.
4. Advertising copy must be submitted prior to the Publishing Party’s deadlines, as revised from time to time. The Publishing Party retains the right to revise its deadlines and to omit all late copy.
5. The Publishing Party shall have no obligation to accept changes to advertisement creative or insertion instructions after acceptance of any Insertion Order. Notwithstanding the foregoing, DRINC will use reasonable efforts to accommodate any change requests submitted with at least ten business days advance notification.
6. Unless otherwise specified in an Insertion Order, placement of Ads is in the sole discretion of the Publishing Party.
7. The Publishing Party shall be entitled to reproduce, display, republish and distribute the Ads and Advertising Materials in any medium, and as part of any service, in which the website(s), properties, Digital Services, applications and/or devices described on the Insertion Order (the “Distribution Network”) are published or made available under license from the Publishing Party. The Publishing Party shall have the right to modify, copy, reformat, transmit and otherwise manipulate any Ads and Advertising Materials provided in connection with such reproduction, display and/or distribution. The Publishing Party is not obligated to return Ads or Advertising Materials to agency or advertiser, and the Publishing Party is not responsible for any damage to or loss of any Ads, Advertising Materials, copy, or other material provided by agency or advertiser.
8. Access to the Digital Services is provided on a revocable, non-exclusive, non-sublicensable, non-transferable basis, solely for use in accordance with the restrictions set forth herein. Advertiser shall not (and will not allow any third party to) modify, reverse engineer (except to the extent applicable law prohibits reverse engineering restrictions), incorporate or use in any other works, create derivatives of, use for the benefit of a third party, or copy any portion of the Digital Services. In its use of the Ads and Digital Services, advertiser will comply with all applicable laws and regulations including, without limitation, laws relating to user privacy and the gathering, storage and usage of personally identifiable information collected from end users of the Ads and/or Digital Services. If advertiser or agency becomes aware of a suspected or actual breach of security or unauthorized access affecting personally identifiable information, advertiser or agency will notify DRINC as soon as possible, and advertiser and agency will take all action necessary and required to address the breach.
9. All Ads and Advertising Materials are accepted and published by the Publishing Party entirely on the representation that the agency and advertiser are duly authorized to distribute, display, reproduce and republish the entire contents and subject matter, without violation of any third party rights, including any intellectual property rights, and shall be jointly and severally responsible for payment thereof. The advertiser and agency, jointly and severally, will indemnify and save harmless the Publishing Party, any other entities that own or operate any of the Distribution Network, and their respective parents, subsidiaries and affiliates, and the partners, directors, officers, agents, employees of each of them, and any third-party service providers and third-parties distributing the Ads or Advertising Materials via the Distribution Network, from and against any and all loss, damage, liability, or expense of any kind (including reasonable attorneys’ fees) incurred in connection with any claims of any kind that arise out of or in connection with an Ad, Advertising Materials, Digital Services provided hereunder, advertiser’s use of the Ads or Digital Services, or any website(s) or material(s) that can be linked to through an Ad or Digital Service. The indemnifying party may not agree to any settlement that imposes any obligation or liability on an indemnified entity without that entity/party’s prior express written consent.
10. For Ad billing purposes, delivery shall be based on the Publishing Party advertising server’s reported numbers. In the event agency or advertiser chooses to utilize a third party advertising server for reporting, such third party must be specified in the Insertion Order. In such event, third party reports must be delivered to DRINC no later than the 10th of the month following the month in which delivery occurred. In no event shall the Publishing Party be obligated to recognize any discrepancy between the Publishing Party advertising server reported number and third party advertising server reported numbers in excess of 10%.
11. Payment is due 30 days from execution of the Insertion Order. Continuation of credit privileges is dependent upon prompt payment. Credit terms applicable to any agency or advertiser are solely within the discretion of DRINC and may be changed or discontinued by DRINC at any time. Upon termination of an Insertion Order for any reason, all outstanding amounts owed shall become immediately due and payable in full, regardless of any credit terms that may have been applicable to agency or advertiser. Agency and advertiser agree to pay any federal, state or local tax or other charges which may be imposed on any Ads and/or Digital Services, in addition to the rates set forth in the Insertion Order.
12. The financial and other terms of each Insertion Order are confidential and shall not be disclosed by agency or advertiser to any third party.
13. The Publishing Party shall have no liability for any omission of, or failure to provide, an Ad or Digital Service or portion of an Ad or Digital Service. In the event of any error in a published Ad or Digital Service for which the Publishing Party may be held legally responsible, the Publishing Party’s sole responsibility shall be to insert a corrected Ad or provide a replacement Digital Service at no additional expense to agency or advertiser for the period of time the Ad or Digital Service was published with the error, up to a maximum of ten days. In the event an Insertion Order is not fulfilled as scheduled, the Publishing Party’s sole responsibility shall be, in its discretion, to (a) run the Ads or provide the Digital Services at a later date; or (b) run the Ads in a different position of the Publishing Party’s choice. THE PUBLISHING PARTY WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY GENERAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST INCOME OR PROFITS, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. IN NO EVENT WILL THE PUBLISHING PARTY’S LIABILITY TO ANY AGENCY OR ADVERTISER EXCEED THE AMOUNTS PAID BY THE ADVERTISER UNDER THE APPLICABLE INSERTION ORDER. The Publishing Party shall not be subject to any liability whatsoever for any failure occasioned because of accidents, fires, strikes, work stoppages, system outages, other circumstances beyond the Publishing Party’s control, or extraordinary news events that preclude the Publishing Party from fulfilling any Insertion Order. In such an event, the affected Insertion Order will be suspended during the period of inability to perform and the terms extended for a like period. The Publishing Party will not have any liability because of such suspension. Unintentional or inadvertent failure of the Publishing Party to fulfill Ads and/or Digital Services shall not operate as a breach of the Insertion Order.
14. Ads and Digital Services are provided on “as is” and “as available” basis with no warranties whatsoever. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PUBLISHING PARTY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, ASSOCIATED WITH THE ADS AND DIGITAL SERVICES, ADVERTISER’S USE OF OR PARTICIPATION IN THE ADS OR DIGITAL SERVICES, OR OTHER SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION: (A) EXPRESS OR IMPLIED WARRANTIES; (B) WARRANTIES ARISING FROM A COURSE OF PERFORMANCE OR DEALING OR TRADE USAGE; (C) WARRANTIES OF UNINTERRUPTED OPERATION WITHOUT ERROR; (D) IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES; AND (E) EXPRESS OR IMPLIED WARRANTIES RELATING TO THE SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY AND/OR PERFORMANCE OF THE ADS AND/OR DIGITAL SERVICES.
15. Agency or advertiser may not cancel any Insertion Order without 45 days prior written notice to DRINC.
16. Agency and advertiser acknowledge that all or part of the Ads or Digital Services placed in connection with this Insertion Order may be displayed on websites or in modules that are owned or controlled by third parties, or that link to content or other websites that are owned or controlled by third parties. Agency and advertiser acknowledge and agree that DRINC has no control over, or responsibility for, the content of any such third party websites or modules.
17. By placing Ads and/or purchasing Digital Services with DRINC, advertiser and agency agree to be bound by these Terms and Conditions. These Terms and Conditions shall be governed by and construed in accordance with the substantive laws of the State of Indiana without regard for conflicts of laws principles. Any disputes arising out of or related to Ads or Digital Services shall be brought only in a state or federal court located in Marion County, Indiana. Advertiser and agency each consent to the exclusive jurisdiction of such courts and waive any objection to the laying of venue of any such civil action or proceeding in such courts. The parties hereto expressly intend the provisions of these Terms and Conditions to confer a benefit upon and be enforceable by, as third-party beneficiaries of these Terms and Conditions, the third persons referred to in, or intended to be benefited by, such provisions. No failure or delay by the Publishing Party in exercising any of its rights, powers or privileges hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude any other or further exercise thereof.