1. AdAction Services
Advertiser agrees to accept and pay for, and AdAction agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, AdAction shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby AdAction will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, AdAction Ads (as defined below) through AdAction either:
Upon the execution of the Agreement, Advertiser must register on the AdAction website and create a unique, password-protected account (“Account”). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser’s Account, whether authorized by Advertiser or not. Advertiser must immediately notify AdAction of any unauthorized use of Advertiser’s Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that AdAction will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
The positioning, placement, frequency and other editorial decisions related to Ads shall be made by AdAction and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Network” or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that AdAction and/or its Affiliates and Publishers may determine, in their respective sole discretion.
5. Ad Codes
Unless otherwise stated in writing by AdAction, each Ad used by AdAction in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by AdAction (“Ad Codes”). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by AdAction to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay AdAction a reasonable market rate determined by AdAction on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser’s inability to provide such information, in the alternative. All determinations made by AdAction in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, AdAction’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.
6. E-mail Marketing
7. Sponsored Content, Content based sites and content-based advertising
AdAction offers Advertisers the opportunity to advertise on our owned and operated content marketing sites, where the advertiser’s product is relevant to the audience and topic of the site. AdAction will place Advertiser’s creative (if provided) and provided tracking links. AdAction will determine in its sole discretion the appropriate placement of such ad. Per the terms of this Agreement, Advertiser will be responsible for all valid conversions, as defined by the IO referenced herein.
If Advertiser purchases sponsored content placements, the price and content shall be determined between parties and outlined on the applicable Insertion Order. AdAction reserves all rights of final approval and refusal for any content to be placed on any AdAction site, or related property. AdAction will follow all FTC rules regarding advertiser disclosures and disclosure of sponsored or advertising content. Advertiser will have no input on placement or content of such disclosures. Advertiser may not present the content on any AdAction site or property to any other party in any way that is misleading as to the sponsored nature of the content.
All advertising, sponsored content otherwise, must follow the requirements of Section 3 of these Terms. All claims made must be verifiable, truthful and accurate. AdAction reserves the right to remove any content at any time with no warning to Advertiser.
9. Leads/CPA/Unaccepted Actions
In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay AdAction for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that:
Advertiser shall make best commercial efforts to prevent and/or substantially limit the occurrences of invalid and/or fraudulent Actions by using suitable fraud detection and customary prevention technology. In addition, and as a condition for nonpayment of applicable fees due for an invalid Action, the Advertiser shall provide AdAction with: (i) a written notification within five (5) days of the discovery of an invalid Action, any fraud claim submitted after the said period will not allow the Advertiser to deny the fees for such invalid Actions; and (ii) a written monthly report that shall include summary of the invalid Actions that occurred in the preceding month. Without derogating from the above, AdAction will not be required to accept any invalid Action claims presented to it unless it receives all the required evidence to satisfactorily determine that such actions were invalid Actions.
For certain incentivized traffic sources, AdAction receives end-user requests for incentives that are not delivered as expected upon user completion of a conversion or required action. Where AdAction finds the end-user has completed the requirements of the offer or campaign and a Valid Action occurred, AdAction reserves the right to invoice the Advertiser for these Valid Actions. AdAction will provide reporting of these Valid Actions to Advertiser monthly and both parties will work in good faith to validate such Actions. Valid Actions will be added to Advertiser’s monthly invoice.
The data associated with any and all Lead/CPA-based Actions (“Action Data”) that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of AdAction, subject to any and all restrictions set forth herein (“Unaccepted Action Data”). Upon Advertiser’s acceptance of a Lead/CPA-based Action (and payment to AdAction therefor in accordance with payment terms set forth herein and in the applicable IO), AdAction shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it:
Advertiser shall provide AdAction, at its request, with periodic reports detailing information regarding Valid Actions, inter alia number of invalid Actions, rates of cancellations, fraudulent events and users, chargebacks, refunds on such Actions and any related information.
Advertiser agrees to provide AdAction with detailed reporting of Actions Advertiser believes are not Valid Actions no less than every seven (7) days. Advertiser agrees that failure to provide such regular, on time reporting of Actions Advertiser believes are not Valid Actions and therefore, non-billable, will disallow the denial of payment for such Actions to AdAction.
The Agreement shall continue for the term set forth in any underlying IO, provided that either party may terminate the Agreement and/or any IO at any time, upon seven (7) business days’ prior written notice. Upon termination or expiration of the Agreement for any reason:
12. Warranty/Limitation of Liability
THE ADACTION, SERVICES, ADACTION ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY ADACTION UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, ADACTION MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADACTION DOES NOT WARRANT OR GUARANTEE ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. WITHOUT DEROGATING FROM THE GENERALITY OF ANY PROVISIONS CONTAINED HEREIN, ADVERTISER ACKNOWLEDGES THAT ALTHOUGH ADACTION ENDEAVOUR TO PLACE THE ADS IN WEBSITES THAT ARE SUITABLE FOR THE GOALS OF THE APPLICABLE CAMPAIGN AND THE TARGET USERS, ADACTION DOESN’T WARRANT THAT: (i) THE CAMPAIGN SHALL BE SUCCESSFUL OR; (ii) THAT THE WEBSITE AND ITS USERS SHALL RISE TO THE EXPECTATIONS OF THE ADVERTISER OR; (iii) THAT IS EXAMINED THE CONTENT OF THE WEBSITE AND/OR THE SUITABILITY THEREOF, OR HAS THE ABILITY TO MONITOR AND/OR CONTROL SUCH CONTENT, INTER ALIA IN TERMS OF LEGITIMACY AND/OR INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (iv) THAT THE SERVICE AND ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. THE ADACTION, SERVICES, ADACTION ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ADACTION HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND ADACTION DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. ADACTION HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND ADACTION DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE ADACTION, SERVICES, ADACTION ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. ADACTION MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL ADACTION BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF ADACTION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADACTION WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND ADACTION’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, ADACTION’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO ADACTION BY ADVERTISER DURING THE PRIOR THREE (3) MONTH PERIOD PURSUANT TO THE AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADVERTISER ACKNOWLEDGES AND AGREES THAT THE ADACTION MAKES NO REPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NO EVENT SHALL THE ADACTION BE LIABLE FOR, THE ACTIONS OR OMISSIONS OF ANY ADVERTISER, FOR ANY CONTENT CONTAINED IN ANY ADVERTISEMENTS OR LINKED WEBSITES, APPS OR OTHER ONLINE PROPERTIES, OR FOR ANY PRODUCT OR SERVICE OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGH ANY ADVERTISER’S ADVERTISEMENT, WEBSITE, APP OR ONLINE PROPERTY. ADVERTISER FURTHER ACKNOWLEDGES AND AGREES THAT ADACTION MAKES NO REPRESENTATIONS, ENDORSEMENTS, GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, AND IN NO EVENT SHALL THE ADACTION BE LIABLE FOR, ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES, OR FOR A PUBLISHER’S WEBSITE(S), APP(S) OR ONLINE PROPERTIES, FOR ANY CONTENT CONTAINED ON A PUBLISHER’S WEBSITE(S), APP(S) OR ONLINE PROPERTIES, OR FOR ANY PRODUCT(S) OR SERVICE(S) OFFERED, PURCHASED, ACCESSIBLE OR USABLE THROUGH A PUBLISHER’S WEBSITE(S), APP(S) OR ONLINE PROPERTIES.
13. Representation and Warranties
Advertiser represents and warrants that:
Each party agrees to indemnify, defend and hold harmless the other, its subsidiaries, advertisers, vendors and suppliers, and each of their respective agents, partners, officers, directors and employees from and against any third-party loss, cost, claim, injury or damage (including reasonable attorneys’ fees) arising out of or related to a breach of such party’s representations or warranties made in this Agreement or a breach of the terms and conditions of this Agreement.
Upon the assertion of any claim or the commencement of any suit or proceeding against an indemnitee by any third party that may give rise to liability of an indemnitor hereunder, the indemnitee shall promptly notify the indemnitor of the existence of such claim and the indemnitor shall defend and/or settle the claim at its own expense and with counsel of its own selection. Indemnitee shall at all times have the right to fully participate in the defense of any claim and in any settlement which it reasonably believes would have an adverse effect on its business. The indemnitee shall make available to the indemnitor all books and records relating to the claim, and the parties to this Agreement agree to render to each other such assistance as may reasonably be requested in order to ensure a proper and adequate defense. An indemnitee shall not make any settlement of any claims which might give rise to liability of an indemnitor hereunder without the prior written consent of the indemnitor. An indemnitor shall not make any settlement of any claims which give rise to or impose any liability or obligations on the indemnitee without the prior written consent of the indemnitee, such consent not to be unreasonably withheld. Nothing in this Agreement shall be construed to prevent indemnitee from retaining counsel of its choice, at the expense of the indemnitee, to represent indemnitee’s interests and participate in the defense of any such claims covered under this section.
For purposes of the Agreement, “Confidential Information” shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of the Agreement by one party (“Disclosing Party”) to the other party (“Receiving Party”), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to:
Advertiser recognizes that AdAction has proprietary relationships with its Publishers and Affiliates. Advertiser agrees not to circumvent AdAction’s relationship with such Publishers and Affiliates, or to otherwise solicit, purchase, contract for or obtain services similar to the Services performed by AdAction hereunder from any Publisher and/or Affiliate that is known, or should reasonably be known, by Advertiser to have such a relationship with AdAction, during the term of the Agreement and for six (6) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers and Affiliates already provided such services to Advertiser prior to the date of the first IO executed by the parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that AdAction shall be entitled to:
17. Force Majeure
Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or Affiliate Network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
Assignment: Neither party may assign, transfer or delegate any of its rights or obligations under the Agreement or any IO without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign the Agreement, any IO or any portion hereof/thereof, to:
Choice of Law/Venue: The Agreement shall be construed in accordance with and governed by the laws of the State of Colorado. Each party irrevocably waives, to the fullest lawful extent, all right to trial by jury in any proceeding relating to this agreement, the notes or the transactions they contemplate.
Modification: The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
Non-Waiver/Severability: No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
No Additional Terms: In the event that AdAction is required to digitally sign, click-through or agree to additional terms using Advertiser’s website(s), Advertiser agrees that such digital terms, conditions, policies, or guidelines (“Online Terms”) are inconsequential and in no way binding; that they are the result of a technical requirement, which cannot be altered, in order to access the online service. Any such Online Terms which appear on Advertiser’s website(s) are to be disregarded and deemed non-effective, and shall be superseded by any contradicting terms of this Agreement.
Relationship of the Parties: The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that AdAction acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).
AdAction Interactive LLC Data Processing Addendum
The terms used in this Exhibit shall have the meanings set forth in this Exhibit. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Agreement. Except as modified below, the terms of the Agreement shall remain in full force and effect.
Subscribe to AdAction Connect to get the latest industry updates, best practices and more.