Terms and Conditions

DIGI8MEDIA ADVERTISER TERMS AND CONDITIONS

THESE ADVERTISER TERMS AND CONDITIONS (“Terms”), together with any Insertion Order(s) executed hereunder (collectively, the “Agreement”), govern the relationship between 13743161 Canada Ltd. dba DIGI8MEDIA, a Canadian limited company (“Company”) and you as an advertiser (“Advertiser”) as of the date of Advertiser’s agreement to the first Insertion Order between the Parties (“Effective Date”). The Terms set forth the terms and conditions governing Advertiser’s use of Company’s Advertising Services (as defined below) pursuant to one or more Insertion Orders. The parties may also be referred to individually as a “Party” and collectively as the “Parties”.
WHEREAS:
    1. Company, on its own accord and through its network for third-party advertising service providers and publishers (each, a “Publisher” and collectively, the “Network”), is in the business of placing advertisements (“Advertisements” or “Ads”) on the internet and through other electronic means, such as email, text/SMS, and mobile advertising (“Advertising Services”).
    2. Advertiser is in the business of offering goods and/or services to consumers (collectively, “Advertiser’s Offers”)
    3. Advertiser wishes to engage Company to promote Advertiser’s Offers through one or more advertising “Campaigns” run by the Network.
    4. Advertiser and Company have agreed to the terms of the Insertion Order incorporated by reference herein.
NOW, THEREFORE, for good and adequate consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree to be legally bound as follows:
1. Select Definitions
For the purposes of these Terms, the Parties agree that, when used capitalized herein, the following terms shall have the following meanings unless they are otherwise defined in these Terms or an Insertion Order.
      1. Action” means a user’s completion of an action requested by the Advertiser. This includes, but is not limited to, a sale, a click, a call, a lead, and an impression (viewing of an advertisement). Detailed definition of “Action” is provided within the Insertion Order.
      2. “Advertiser” means a person (legal or natural), or any other person acting on behalf of the former with express or implied authority, like an agency, which creates the Advertisement and uses to use the Network of Company to acquire Actions through the Advertisement to the Advertiser’s Website (as defined below).
      3. “Ad” or “Advertisement” means any advertisement, including all Creative (as defined below) supplied by Advertiser to Company.
      4. “Advertiser Website” means the website, or affiliated websites and/or landing pages that are being promoted through the Campaign.
      5. “Campaign” means a series of Ads, emails, or offers (delivered either via Ad or via email) of Advertiser or its agency.
      6. “Company Website” means the website and online portal owned and operated by Company and through which its Advertising Services are accessed.
      7. “Creative” means all creative content, including any digital graphic and/or text file(s) meeting the specifications contain in the Insertion Order(s), which are supplied by Advertiser to Company for use in the Campaign. Creatives include banners, buttons, interstitials, and keywords. The digital creative can be in text, static graphic, animated graphic, video, audio, or other format.
      8. “IO” or “Insertion Order” means any separate statement of work, insertion or purchase order executed by the Parties for a specific Campaign. Each Insertion Order is a material part of the Agreement between the Parties and incorporated by reference herein.
      9. “Publishers” means third parties who provide advertising, email, or other internet advertisement transmission services, and upon whom Company may call to host or publish the Advertiser’s Ad(s) in order to fulfill this Agreement. Company’s use of any particular Publisher will be at the Company’s sole discretion through independent contracts or orders between Company and said Publishers.
      10. “Unit” means a user’s completion of the act as defined by the campaign pricing model designated in the Insertion Order, for example Cost per Action (CPA), Cost per Click-through (CPC), Cost per Impression (CPM), Cost per Lead (CPL), or Cost per Sale (CPS).
      11. “User” means any person accessing Advertiser’s Website, receiving electronic mail services, or otherwise viewing and acting upon Advertiser’s Ad, including through the use of the Network.
2. Advertising Services; Company’s Proprietary Rights
  1. Upon acceptance by Company of a properly completed Insertion Order, Company will place Advertiser’s Creative(s) on the Network platform for use by its Publishers to promote Advertiser’s Offers through each Campaign.
  2. The Parties will execute a separate Insertion Order for each Campaign. Each Insertion Order will set forth, at a minimum, the Campaign start dates and times, any budget for the Campaign, a clear definition of the Action and any exemptions therefrom (for example, if a lead must meet certain criteria, such criteria must be expressly set forth), and the fees to be paid by Advertiser to Company. In the event of any conflict between the Terms and any Insertion Order, the Campaign-specific terms in the Insertion Order shall govern as to that Campaign, and the terms of this Terms shall govern as to all other matters.
  3. Company’s sole obligation to Advertiser under this Agreement with respect to Ad(s) will be to place such Ad(s) on the internet, including placement of Ad(s) through the use of its Network. Accordingly, placement of Ad(s) will be in the discretion of Company and subject to the right of Company and/or any Publisher to reject any Advertisement. The Advertiser acknowledges that Company nor its Publishers are not responsible for the Creative content of the Ad(s) and/or any promises contained in the Ad(s).
  4. This Agreement does not require Company to provide graphic or other advertising design services, or any other services relating to the content and appearance of Creative. This Agreement is instead designed and limited in scope and intended only to cover the placement, transmission, and promotion of electronic Ad(s) provided by Advertiser rather than the design or creation of such Advertisements. This Agreement likewise does not cover website development services, programming, or any other related service.
  5. Advertiser acknowledges and agrees that Company is merely an exchange which facilitates relationships between Advertiser and Publishers. Company does not pre-screen Advertisements for inclusion on the Company Network and shall not be responsible for policing, monitoring, or editing any Creative or Advertisement for legal compliance, inappropriate content, or otherwise. Advertiser bears sole responsibility for all Creative provided by or approved by Advertiser.
  6. Company shall use reasonably commercial efforts to make the Company Website available 24 hours a day, 7 days a week, except for (a) planned downtime or (b) downtime caused by circumstances beyond Company’s reasonable control. COMPANY RESERVES THE RIGHT TO CHANGE THE COMPANY WEBSITE AND THIS AGREEMENT AT ANY TIME UPON NOTICE TO ADVERTISER, TO BE GIVEN BY THE POSTING OF A NEW VERSION, CONTACTING THE ADVERTISER VIA EMAIL, OR POSTING A CHANGE NOTICE TO ADVERTISER’S ACCOUNT.
  7. Advertiser agrees that it does not have, nor will it claim, any right, title, or interest in the Network, the associated tracking platform and any data, reports, information, or analyses arising out of such use (the “Network Data”), the Network Data, or any underlying technology, software, applications, data, methods of doing business, or any elements thereof, or any content provided on Company’s Website. Advertiser may only access the Company Website via web browser, email, or in a manner approved by Company. Advertiser shall not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Company Website tags, source codes, links, pixels, modules, or other data provided by or obtained from Company that allows Company to measure Campaign performance and provide the Network. In addition, Advertiser acknowledges that all Network Data, including but not limited to non-public information, data, and reports received by Advertiser from Company as part of the Networks are proprietary to and owned by Company, even if Advertiser’s advertising activity contributed in some part to the Network Data. If instructed to do so by Company, Advertiser will immediately destroy and discontinue the use of any such Network Data and any other material owned by Company or its third-party Advertisers.
3. Advertiser Creative; Advertiser Website
      1. License. Advertiser hereby grants to Company a worldwide, assignable, nonexclusive, and revocable, as stated herein, license to use, reproduce, publicly and digitally display, and perform, transmit, and broadcast Advertiser’s name, logos, trademarks, trade names, service marks, copyrights, URLs, slogans, and all other intellectual property rights in order to display, market, promote, and publicize all Ads and Campaigns, including all Creative. Such license shall terminate immediately upon termination of all IOs then in effect.
      2. Creative. At least forty-eight (48) hours prior to a Campaign start date, Advertiser shall provide Creative materials for such Ad and/or Campaign, including without limitation product or service descriptions, graphics, images, logos, and text. Advertiser shall submit changes to or cancellations of Creative materials at least ten (10) days prior to the requested change or cancellation date.
      3. Email Creative. With respect to any email Campaigns (and to the extent requirements are not addressed in the relevant IO), Advertiser will provide to Company, as part of the Creative, a list of acceptable subject lines and “friendly from” names that are in compliance with the CAN-SPAM Act of 2003 (“CAN-SPAM”), California’s Anti-Spam Act, Cal. Bus. & Prof. Code §§ 17529 et seq. (“California’s Anti-Spam Act”), and any other applicable anti-spam laws.
      4. Advertiser Website. Advertiser shall use best efforts to make the Advertiser Website(s) available 24 hours a day, 7 days a week to ensure that User Actions are processed on a timely basis. Advertiser shall notify Company at least one (1) week prior to any scheduled maintenance or downtime so that Company has adequate time to notify Publishers who are running the applicable Ads and/or Campaigns.
      5. Affiliate Terms on Advertiser Website Not Binding. IN THE EVENT THAT COMPANY IS REQUIRED TO AGREE TO ADDITIONAL TERMS WHEN USING ADVERTISER’S WEBSITE, THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT SUCH AGREEMENT IS INCONSEQUENTIAL AND IN NO WAY BINDING AND THAT IT IS A RESULT OF A TECHNICAL REQUIREMENT (THAT CANNOT BE ALTERED) TO VIEW STATISTICS/RECORDS OR ACCESS CREATIVE MATERIALS. THEREFORE, ANY SUCH TERMS THAT APPEAR ON ADVERTISER’S WEBSITE ARE TO BE DISREGARDED AND DEEMED NON-EFFECTIVE AND SHALL BE EXPLICITLY SUPERSEDED BY THIS AGREEMENT.
4. Advertising Restrictions and Conditions
  1. Company expressly reserves the right to:
    1. refuse any advertising request or cancel any Ad that does not completely conform to every material detail, instruction, method, and guideline set forth in the Insertion Order;
    2. refuse any Ad that does not arrive 48 hours prior to the Campaign start date;
    3. refuse or cancel the use of any Ad that it deems, in its sole and absolute discretion, inappropriate for any reason or no reason;
    4. refuse at any time to market, display, perform, copy, or transmit and promote the Ad(s) that Company believes, in its sole and absolute discretion is an invasion of privacy, is degrading, libelous, unlawful, profane, obscene, pornographic, tends to ridicule or embarrass, is in bad taste, or which in its reasonable discretion is an infringement on a trademark, trade name, or copyright belonging to others;
    5. refuse any Ad request or cancel any Ad that is or can be hosted by any directly or indirectly competitive network;
    6. refuse or cancel any Ad which redirects traffic to a website other than the Advertiser Website specifically identified in the Insertion Order; and
    7. refuse or cancel any Ad which on its face asks Users to take advantage of other or additional offers or Ads not specifically identified in the Insertion Order.
2. Any Ad rejected by Company may be replaced by Advertiser subject to the reservation of right of Section 4(a); provided that any such replacement material must be in writing and accompanied by appropriate material identifying the Ad that it is to replace. Company will notify Advertiser of the rejection of any Ad and will have no liability to Advertiser for any such rejection. Further, Company will have no liability to Advertiser for failure to place any Ad on any particular portion of the Company Network.

3. Advertiser agrees to pursue any claims against Publishers for violation of Company’s CAN-SPAM compliance policies against such Publishers directly and not against Company. Advertiser will timely notify Company of any such claim so that Company may terminate the breaching Publisher.
5. Auditing and Tracking of Campaigns
      1. Tracking by Company. Advertiser acknowledges that Company’s tracking system will serve as the verifiable log of responses from computing billing amounts. Advertiser will provide Company with any Advertiser ID, Order ID, URL, and Origin ID necessary for Company to track all Actions and determine the amounts owed by Advertiser to Company under this Agreement.
      2. No Offsets. Unless otherwise provided in the Insertion Order, no offsets or chargebacks may be taken for any non-viable or duplicate leads or other Actions. Absent specific criteria in the Insertion Order, Company will determine in its reasonable discretion what constitutes a non-viable lead or other Action. Without limiting the breadth of the foregoing, non-viable leads will include, but not be limited to, leads with incomplete or fraudulent contact information (i.e., a lead which does not include an e-mail address, phone number, or physical address). Specific fields required by the Advertiser must be detailed on the Insertion Order.
      3. Payment Calculations. Advertiser acknowledges that Company will have sole and absolute responsibility for calculation of the Units that comply with the terms of the Insertion Order. In the event that Advertiser disagrees with any such determination, it must send Company a written request for review by Advertiser within seven (7) days of billing. Company will then provide Advertiser with a reviewed audit of the numbers. In the event that Advertiser further disagrees with the reviewed audit numbers, Advertiser has the right, at its expense and for the sole purpose of ensuring compliance with the Agreement, to conduct its own reasonable audit of Company’s records of Units delivered. Any such audit may be conducted upon seven (7) business days prior written notice, provided that such audits will not be made more frequently than once every six months. Company will maintain commercially reasonable records of Units delivered during the term of the Agreement and for one (1) year following termination of the Agreement.
      4. Access to Offer Tracking. Advertiser will allow Company online access to live, real- time statistics regarding performance of the Campaign and Offer and will provide access to records as they become available that will allow Company to monitor the volume of Actions it has generated. Advertiser agrees to keep its Advertiser Website running and functional, allowing for Actions to be processed. All such records provided by Advertiser will be the sole property of Advertiser.
      5. Tracking Lock; Disputes. The number of Actions accrued during a given calendar month will be locked ten (10) days after the close of said month (the “Tracking Lock Date”). Accordingly, all requests for reversals/refunds must be accompanied by a lead detail report containing no less than the Publisher ID, IP, time stamp and reasons for return and submitted to Company prior to the Tracking Lock Date. No refunds shall be granted thereafter unless mutually agreed-upon by the Parties.
      6. Unless otherwise provided in the Insertion Order, Advertiser agrees to pay for any over delivery of Actions ordered under the terms of this Agreement of an amount no greater than a ten percent (10%) over delivery.
6. Deposit; Payments
      1. Payment Schedule. Unless otherwise stated in the Insertion Order, Advertiser will pay Company for Actions delivered within fifteen (15) days of the date Advertiser receives an invoice or tracking statement from Company. Payment shall be made in U.S. Dollars ($US). If Company does not receive a written notification of a disputed bill, with rationale and support specifically set forth therein, within seven (7) days from the date the invoice was sent to Advertiser, the invoice will be deemed valid and payable and may not thereafter be disputed. Advertiser agrees that this provision is reasonable, and that Company will rely upon Advertiser’s agreement to this provision in making payments to Publishers in connection with the Advertiser’s Campaigns.
      2. Payment Objections. NOT WITHSTANDING THE FOREGOING, ONCE THE SEVENTY-TWO (72) HOUR PERIOD TO DISPUTE A PAYMENT OBLIGATION HAS EXPIRED, ADVERTISER MAY NOT WITHHOLD MONTHLY PAYMENT OR ANY OTHER AMOUNT DUE TO COMPANY BY REASON OF FRAUD OR OTHER ALLEGED WRONGDOING, TRAFFIC QUALITY, NON-VIABLE LEADS OR OTHER ACTIONS, LATE PAYMENTS, CREDIT CARD REFUSALS, EXPIRATIONS, CHARGEBACKS, AND ANY AND ALL OTHER DISPUTES IN CONNECTION WITH USER ACTIONS. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOST PROFITS, LOST REVENUES, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO ANY CREDIT CARD REFUNDS, PENALTIES, FEES, CHARGEBACK COSTS, OR THE LIKE.
      3. Penalty for Nonpayment. In the event Advertiser fails to pay the full amount of an invoice within fifteen (15) days after payment is due, Company, in its sole discretion, may remove the Advertisement or Creative from the internet and/or terminate this Agreement without notice to the Advertiser. In such instance, all outstanding charges shall bear interest at a rate of 1.5% per month or the maximum interest rate permitted under applicable law, whichever is less. Advertiser agrees that if Advertiser does not pay within fifteen (15) days after payment is due, Company, or its Publishers, may seek to satisfy Advertiser’s Payment Obligation and to collect such payment. Advertiser further agrees to pay all costs of collection (including court costs and reasonable attorneys’ fees) incurred by Company, or its Publishers, in connection with its enforcement of any Insertion Order.
7. Term, Termination, Payment of Minimum Contract Price
      1. Term; Automatic Renewal. This Agreement shall begin on the execution date of the first Insertion Order and shall remain in effect until the expiration or termination of all Insertion Orders hereunder.
      2. Either Party may terminate the Terms, any Insertion Order, or both, at any time, for no reason or for any reason, upon seven (7) days written notice to the other Party. Company reserves the right to terminate this Agreement immediately, in its sole discretion, in the event of nonpayment by Advertiser or if Company determines that the Campaign is not generating sufficient response to continue to offer it to the Network. Further, either party may terminate the Terms, any Insertion Order or both, immediately by delivering written notice to the other Party upon the occurrence of any of the following events: (i) any material breach occurs and is not cured within seven (7) days of receipt of notice of the breach; (ii) a receiver is appointed for either Party or its property; (iii) either Party makes a general assignment for the benefit of its creditors; (iv) either Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency, or debtor’s relief law, if such proceedings are not dismissed within 60 days; or (v) either Party is liquidating, dissolving, or ceasing to do business in the ordinary course.
      3. Effect of Termination; Survival. Any termination of this Agreement automatically terminates all rights and licenses granted to Advertiser under this Agreement, including all rights to use the Company Site and Service. Subsequent to termination, Company reserves the right to exercise whatever means it deems necessary to prevent Advertiser’s unauthorized use of the Company Site and Service, including without limitation technological barriers such as IP blocking and direct contact with Advertiser’s internet Service Provider. Upon termination, all rights and obligations under this Agreement will terminate, except that Sections 3(e), 6, 7(c), 8(b), and 9-17, together with any Payment Obligations incurred prior to the effective date of termination, shall survive termination of this Agreement.
8. Suppression Lists; CAN-SPAM; California Anti-Spam Act Compliance; and Telephone Consumer Protection Act Compliance
  1. Suppression Lists. Advertiser represents and warrants that it is familiar with CAN-SPAM, California’s Anti-Spam Act, and the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”), as amended from time to time, and acknowledges that it is the Advertiser’s sole responsibility to ensure that it is operating pursuant to the CAN-SPAM Act, the California Anti-Spam Act, the TCPA, and all related legislation. To the extent that Advertiser (or, as applicable, Advertiser’s client) receives via email, website, text message, or other means, including directly from Company, an “unsubscribe” or “opt-out” request regarding any Ad and/or Campaign, Advertiser shall provide Company a list of such “unsubscribe” and “opt-out” (hereinafter, the “Suppression List”), which will be passed on to Publishers who participate in the Campaign. With respect to the foregoing, Advertiser acknowledges and agrees to the following:
      1. The Suppression List is to be made available online or to be delivered to Company via email by Monday of each week. If Monday is a holiday, then the Suppression List is to be delivered on the preceding Friday or following Tuesday;
      2. The Suppression List must include the most recent, full compilation of all opt-out requests for the Campaign;
      3. The Suppression List must be updated every seven (7) days or sooner; and
      4. Advertiser must respond to all suppression abuse claims within forty-eight (48) hours, including holidays and weekends;
If the above requirements are not met, Company will:
  1. suspend the Advertiser campaign until a future audit determines that Advertiser is fully CAN-SPAM, California Anti-Spam Act, and TCPA compliant and their Suppression Lists are accurate and up-to-date;
  2. notify Publisher to suspend traffic to the campaign; and
  3. invoice Advertiser for average estimated User revenues (based on the previous thirty-six (36) hours) lost for campaign downtime.
Company reserves the right to terminate this Agreement and its relationship with Advertiser if Advertiser fails to meet Suppression List requirements and/or CAN-SPAM and/or California Anti-Spam Act and/or TCPA compliance.
    1. COMPANY DISCLAIMS, AND ADVERTISER AGREES TO ASSUME, ALL RESPONSIBILITY AND LIABILITY FOR: (A) ADVERTISER’S FAILURE TO TIMELY PROVIDE COMPANY WITH A SUPPRESSION LIST; (B) ANY INACCURATE OR INCOMPLETE SUPPRESSION LIST PROVIDED BY ADVERTISER; (C) ANY FAILURE ON BEHALF OF A PUBLISHER TO SCRUB ITS DATABASE AGAINST ADVERTISER’S SUPPRESSION LIST; OR (D) ANY VIOLATIONS OF ADVERTISER’S PRIVACY POLICY AS A RESULT OF COMPANY’S DELIVERY OF THE SUPPRESSION LIST TO PUBLISHERS.
    2. Company acknowledges that the Suppression List is and will remain Advertiser’s exclusive property and will only be used by Company and the Network for purposes of scrubbing email and phone lists for Advertiser’s Campaigns.
9. Intellectual Property Rights
    1. Neither party will acquire any ownership interest in each other’s intellectual property. Company shall have the right to place Advertiser’s logo, trade name, and trademark on any advertising from Advertiser, and to otherwise use such items in connection with the purposes of this Agreement.
    2. Advertiser represents and warrants that it has the full and exclusive right to grant or otherwise permit Company to access the Advertiser’s Website, and to use Advertiser’s intellectual property as necessary for Company to perform its obligations under this Agreement. Advertiser is aware of no claims by any third parties adverse to any of such intellectual property rights. Advertiser represents and warrants that it has obtained all necessary licenses, consents, and approvals relating to all Content provided by a third party, and that it is responsible for obtaining such licenses, consents, and approvals during the term of this Agreement.
10. Representations and Warranties
      1. Advertiser represents, warrants, and agrees that the party signing on its behalf has the full corporate right, power, and authority to enter into this Agreement and agrees to indemnify Company for and hold Company, its employees, and its Network harmless from any damage resulting from breach of this warranty.
      2. Advertiser represents and warrants that: (a) Advertiser has all necessary rights and authority to enter into this Agreement and to grant Company the licenses granted herein; (b) the execution of this Agreement by Advertiser, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which Advertiser is a party or by which it is otherwise bound; (c) the Suppression List Advertiser provides is accurate and complete; (d) its Offers and the Creative provided by Advertiser are not deceptive, fraudulent, or misleading, and that they comply with all applicable laws including, without limitation and where applicable, CAN-SPAM and other anti-spam legislation, the Federal Trade Commission Act, the COVID-19 Consumer Protection Act, the Restore Online Shoppers’ Confidence Act, the California Automatic Renewal Law, the Fair Credit Reporting Act, regulations governing the promotion and exchange of securities, commodities, futures, and cryptocurrency, sweepstakes law, and any professional rules applicable to Advertiser’s industry; (e) Advertiser–and not any affiliated or third-party entity–is the legal owner of all MIDs on which its transactions are processed (f) to the extent applicable, if any Offers or Creative relate to the promotion of weight loss products or nutraceuticals all claims made will be substantiated and based upon multiple peer reviewed studies; and (g) any testimonials incorporated in Offers or Creative must be truthful, accurate, and if consideration was paid for the testimonial such consideration must be disclosed.
      3. With respect to Campaigns involving emails, Advertiser expressly represents and warrants that: (a) Advertiser has the power and authority to bind itself to these representations and warranties; (b) that Advertiser will comply with all aspects of the CAN-SPAM Act; and (c) Advertiser will not submit a Campaign for transmission of any email: (i) with a “from line” that is materially false or misleading and does not accurately identify the person sending the email; (ii) with a subject line that is misleading, false, or misrepresentative or is likely to mislead the recipient about the content of the email; (iii) that does not include a clear and conspicuous identification that the email is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid physical postal address of the Advertiser; or (iv) with any content that (1) infringes or violates any intellectual, proprietary or privacy rights as set forth in Section 9(b) above; or (2) is misrepresentative or defamatory or violates any applicable law or regulation as set forth in this Section 10.
11. Confidentiality
        1. Confidential Information. Without limiting any other provision in this Agreement, “Confidential Information” shall mean any proprietary information, technical data, trade secrets, or know-how (which shall include, without limitation, the content of this Agreement, sales data, research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information) whether disclosed orally or in writing through any media, whether or not designated as confidential, that is known or should reasonably be known by the receiving party to be treated as confidential. Confidential Information does not include information, technical data, or know-how which: (i) is known to the receiving party at the time of disclosure to the receiving party by the disclosing party as evidenced by written records of the receiving party; (ii) has become publicly known and made generally available through no wrongful act of the receiving party; or (iii) has been rightfully received by the receiving party from a third party who is authorized to make such disclosure.
        2. Nondisclosure of Confidential Information. The Parties hereby agree to maintain the secrecy of the other Party’s Confidential Information, and to safeguard the other Party’s Confidential Information with the same degree of care as is exercised in connection with its own proprietary and confidential materials. Each Party shall not disclose, use, modify, copy, reproduce, or otherwise divulge any Confidential Information of the other Party other than as necessary to fulfill the receiving Party’s obligations under this Agreement. The Parties acknowledge that unauthorized disclosure or use of Confidential Information may cause irreparable harm to the non-disclosing Party for which recovery of money damages would be inadequate, and that the non-disclosing Party shall therefore be entitled to seek timely injunctive relief to protect its rights under this Agreement, in addition to any and all remedies available at law.
12. Indemnification
    1. By Advertiser. Advertiser agrees to indemnify, defend, and hold harmless Company, its subsidiaries, parents, partners, affiliates, agents, contractors, technology licensors, shareholders, officers, directors, representatives, employees, and Publishers (collectively, “Company Parties”) from and against any and all claims, losses, costs, actions, lawsuits, judgments, demands, injuries, expenses, damages, reasonable attorney’s fees and costs (collectively, “Claim(s)”) arising out of or relating to any: (i) breach of the Agreement by Advertiser; (ii) the content of any Advertiser-supplied or approved Creative or Advertiser’s Offers; (iii) any allegation that Advertiser or a Publisher violated any applicable law or regulation; and (iv) any allegations of fraud, misrepresentation, negligence, infringement or intellectual property rights, violation of privacy, or other violation of law by Advertiser.
    2. Publishers and Company. If a Claim arises out of or relates to commercial emails, Campaigns, Creative, Users, or Publisher conduct (“Ad Claims”), Advertiser agrees to only seek defense and indemnity from the affiliated Publisher; Advertiser agrees not to seek defense and indemnity from Company, who shall not be liable for same. Company agrees to cooperate and provide reasonable assistance to Advertiser. Without limiting the foregoing, Company agrees to indemnify, defend, and hold harmless Advertiser, its subsidiaries, parents, partners, affiliates, agents, contractors, shareholders, officers, directors, representatives, and employees from and against any third-party Claim arising out of or relating to any of the following: (i) any breach of this Agreement by Company; and (ii) any allegations of fraud, misrepresentation, negligence, infringement of intellectual property rights, violation of privacy, or other violation of law by Company. Company’s indemnification obligations shall not extend to the independent conduct of its Affiliates.
    3. Any Party seeking indemnification shall provide prompt notice of any Claim and reasonable cooperation. Any indemnifying party shall not agree to any resolution of any Claim that adversely affects the indemnified party’s rights or interests without the prior written consent of the indemnified party, which shall not be unreasonably withheld.
13. Privacy
Advertiser agrees to conspicuously post on each Website home page used in connection with the Service a privacy policy that: (i) discloses its privacy practices, including its use of a third party for its advertising services; (ii) identifies the collection and use of information gathered in connection with its advertising services; and (iii) provides opt-out instructions.
14. Disclaimers; Limitation of Liability
    1. No Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY, ON BEHALF OF ITSELF, ITS AGENTS, AND ITS PUBLISHERS, LICENSORS AND SUPPLIERS, HEREBY DISCLAIMS ALL WARRANTIES. THE ADVERTISING AND OTHER SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY, ON BEHALF OF ITSELF AND ITS AGENTS, ITS PUBLISHERS, LICENSORS, AND SUPPLIERS, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ADVERTISING SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. COMPANY AND ITS PARTNERS, PUBLISHERS, LICENSORS, OR SUPPLIERS, DO NOT WARRANT THAT THE ADVERTISING SERVICES WILL MEET ADVERTISER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. COMPANY AND ITS AGENTS, PARTNERS, PUBLISHERS, LICENSORS, OR SUPPLIERS DO NOT HAVE ANY LIABILITY WHATSOEVER FOR ADVERTISER’S USE OF THE SERVICES. COMPANY DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES, OR ANY RETURN ON INVESTMENT. COMPANY MAKES NO REPRESENTATION WHATSOEVER WITH RESPECT TO THE POTENTIAL FOR ANY SALES BEING PROCURED AS A RESULT OF THE ADVERTISING SERVICES PROVIDED HEREUNDER.
    2. Limitation of Liability. THE LIABILITY OF COMPANY AND ITS PUBLISHERS, LICENSORS AND SUPPLIERS IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY OR ITS PUBLISHERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST DATA OR CONFIDENTIAL OR OTHER INFORMATION, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION OF GOOD FAITH OR OF REASONABLE CARE, NEGLIGENCE, OR OTHERWISE, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES OR OF ANY ADVICE OR NOTICE GIVEN TO COMPANY OR ITS PUBLISHERS, LICENSORS, AND SUPPLIERS ARISING OUT OF OR IN CONNECTION WITH ADVERTISER’S USE OF THE SERVICES. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION. ADDITIONALLY, THE MAXIMUM LIABILITY OF COMPANY AND ITS PUBLISHERS, LICENSORS, AND SUPPLIERS SHALL, UNDER ALL CIRCUMSTANCES, BE LIMITED TO THE AGGREGATE OF ALL AMOUNTS RECEIVED BY COMPANY FROM ADVERTISER HEREUNDER DURING THE SIX MONTHS PRECEDING THE INCIDENT OR INCIDENTS GIVING RISE TO SUCH LIABILITY. ADVERTISER AGREES THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND ADVERTISER. THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
15. Non-Solicitation of Publishers
During the term of this Agreement, and for a period of six (6) months thereafter, Advertiser will not knowingly participate in any performance-based advertising relationship with any Publisher, unless a previously existing business relationship between Advertiser and Publisher can be demonstrated to the reasonable satisfaction of Company. In this connection, both Parties agree and acknowledge that if Advertiser violates its obligations hereunder, Company will be entitled to damages in the amount of twenty-five percent (25%) of the gross revenues resulting from sales conducted by Advertiser through the advertising or marketing efforts of Publisher during the term of this Agreement, and for gross revenues in the three (3) months preceding the date such violation was discovered by Company and the three (3) months after termination of this Agreement.
16. Governing Law; Jurisdiction and Venue
  1. Choice of Law. If the Advertiser is located outside of the United States, this Agreement, including any Insertion Orders, shall be treated as though this Agreement were executed and performed in Canada and shall be governed and construed in accordance with the laws of Canada without regard to conflict of law principles. If the Advertiser is located in the United States, this Agreement, including any Insertion Orders, shall be treated as though this Agreement were executed and performed in San Francisco, California and shall be governed and construed in accordance with the laws of the California without regard to conflict of law principles.
  2. Dispute Resolution for Advertisers Located Outside of the United States. Advertisers located outside of the United States agree that any dispute, of any nature whatsoever, between Advertiser and Company arising out of or relating to this Agreement, including Insertion Order(s), and any Campaign-specific terms and conditions, shall be decided by neutral, binding arbitration before a representative of JAMS. The Parties agree that the arbitration will take place over Zoom unless the Parties mutually agree to participate in person, in which case the arbitration will take place in Toronto, Canada. The arbitrator shall render an award in accordance with the substantive laws of California and JAMS’ Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS fee) to the prevailing party.
  3. Requirement of Arbitration for Advertisers Located in the United States. Advertisers located in the United States agree that any dispute, of any nature whatsoever, between Advertiser and Company arising out of or relating to this Agreement, including Insertion Order(s), and any Campaign-specific terms and conditions, shall be decided by neutral, binding arbitration before a representative of JAMS. The Parties agree that the arbitration will take place over Zoom unless the Parties mutually agree to participate in person, in which case the arbitration will take place in San Francisco, California. The arbitrator shall render an award in accordance with the substantive laws of California and JAMS’ Streamlined Arbitration Rules & Procedures. A final judgment or award by the arbitrator may then be duly entered and recorded by the prevailing party in the appropriate court as final judgment. The arbitrator shall award costs (including, without limitation, the JAMS fee) to the prevailing party.
  4. Remedies in Aid of Arbitration; Equitable Relief. This agreement to arbitrate will not preclude Advertiser or Company from seeking provisional remedies in aid of arbitration, including without limitation orders to stay a court action, compel arbitration, or confirm an arbitral award, from a court of competent jurisdiction. Furthermore, this agreement to arbitrate will not preclude either Advertiser or Company from applying to a court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary.
  5. Venue
  1. Advertisers Located in the United States. The exclusive venue for any non-arbitration action arising out of or under this Agreement—including, without limitation, any motion to compel arbitration, any remedies in aid of arbitration, or any petitions for equitable relief—shall be the state and federal courts located in or nearest to San Francisco, California. The Parties hereby waive any objection to the venue or personal jurisdiction of such courts.
  2. Advertisers Located Outside of the United States. The exclusive venue for any action arising out of or under this Agreement shall be Toronto, Canada. The Parties hereby waive any objection to the venue or personal jurisdiction of such courts
6. No Joinder of Claims. The Parties further agree that neither Party will join any legal claim with the claim of any other person or entity in a lawsuit, arbitration or other proceeding, that no legal claim will be resolved on a class-wide basis, and that neither Party will assert a claim in a representative capacity on behalf of anyone else.
17. Miscellaneous
  1. Independent Contractors. The Parties hereto are independent contractors, and nothing herein should be construed to constitute the Parties as partners, joint ventures, agent and principal, or employer and employee. Nothing herein will give either Party any right or authority to bind the other, and neither Party will bind the other to any obligation to any third-party.
  2. Except as otherwise provided in this Agreement, all notices under this Agreement will be in writing and will be delivered by personal service, fax, email, express courier, or certified mail. Notice will be effective upon sending.
Waiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any provision or right in that or any other instance.
  1. Successors; Assignment. This Agreement will be binding upon, inure to the benefit of, and be enforceable by the Parties hereto and their respective successors and assigns. Except in connection with a merger, acquisition, or sale of all or substantially all of a party’s assets related to this Agreement, neither party may assign this Agreement and its rights and obligations hereunder, and any attempted assignment in contravention of this provision shall be null and void and of no force or effect.
  2. Entire Agreement. This Agreement, including any Insertion Order(s) and any other exhibits or attachments, constitutes the entire agreement between the Parties and supersedes all prior agreements or understandings between the Parties whether written or oral, and may not be altered, varied, revised, or amended except by a writing signed by both Parties.
  3. All headings are for convenience only and shall not affect the meaning of any provision of this Agreement.
  4. If for any reason a court of competent jurisdiction, or arbitrator, finds any provision or portion of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
  5. Each Party acknowledges and agrees that it has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and conditions of this Agreement. This Agreement shall not be construed against either Party by reason of its drafting.
  6. Force Majeure. Neither Party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of such party.
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