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- Innovation Ads Standard Terms and Conditions
In order to use certain areas of this web site, a user may be required to complete a registration form. During registration a user gives contact information (such as name and email address, etc). We use this information to contact the user about services on our site for which he/she has expressed interest.
While Innovation Ads, Inc. holds your personal information securely, we do provide third-party access to your personal information, we may provide third parties with aggregate statistics about our customers, traffic patterns, and related site information. This data reflects site usage patterns gathered during customer visits to our Web site each month and may contain behavioral or identifying information about any individual member, unless that member has not given us permission to share that information.
We store information that we collect through cookies, log files, clear gifs, and/or third parties to create a profile of our users. A profile is stored information that we keep on individual users that detail their viewing preferences. Consequently, collected information is tied to the user’s personally identifiable information to provide offers and improve the content of the site for the user. This profile is used to tailor a user's visit to our Web site, and to direct pertinent marketing promotions to them, by Innovation Ads, Inc. or our partners. Your profile is shared with third-parties in aggregate form only. Our partners may include advertisers, retailers, financial service companies, and other companies that have signed a valid marketing, non-disclosure and confidentiality agreements with Innovation Ads, Inc.
Like most standard Web site servers we use log files. This includes internet protocol (IP) addresses, browser type, internet service provider (ISP), referring/exit pages, platform type, date/time stamp, and number of clicks to analyze trends, administer the site, track user's movement in the aggregate, and gather broad demographic information for aggregate use. IP addresses, etc. are not linked to personally identifiable information. We may use a tracking cookie that enables our log file analyzer to track user movement.
For those areas of the site that require online registration, we send all new members a welcoming email to verify your request. Our sales team will promptly respond to your request and occasionally our prospects will receive information on products, services, special deals from Innovation Ads, Inc. or our partners. Out of respect for the privacy of our users we present the option to not receive these types of communications. Please see the opt-out section.
If a user wishes to subscribe to our newsletter, we ask for contact information such as name and email address. Out of respect for our users privacy we provide a way to opt-out of these communications. Please see the Opt-out section.
Though we make every effort to preserve user privacy within our network, we may need to disclose personal information when required by law where we have a good-faith belief that such action is necessary to comply with a current judicial proceeding, a court order or legal process served on our Web site.
Our users are given the opportunity to 'opt-out' of having their information used for purposes not directly related to our site at the point where we ask for information. For example, our site form has an 'opt-out' mechanism so users who buy a product from us, but don't want any marketing material, can keep their email address off of our lists. Users who no longer wish to receive our newsletter and promotional communications may opt-out of receiving these communications by following the instructions given on each e-mail. If these mechanisms fail, the user may contact us at optout@innovationads.com to opt-out.
This Web site may contain links to other sites. Please be aware that we, Innovation Ads, Inc., is not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of each and every Web site that collects personally identifiable information. This privacy statement applies solely to information collected by this Web site.
This Web site takes every precaution to protect our users' information. When users submit sensitive information via the Web site, their information is protected both online and off-line. When our quote/information form asks users to enter sensitive information, that information is protected with to ensure your privacy. We use the highest level of security encryption, firewalls, and dependable servers. If you are on a secure page, such as an order form, the lock icon on the bottom of Web browsers such as Netscape Navigator and Microsoft Internet Explorer becomes locked, as opposed to un-locked, or open, when users are just 'surfing'. While we use SSL encryption to protect sensitive information online, we also do everything in our power to protect user-information off-line. All of our users' information, not just the sensitive information mentioned above, is restricted in our offices. Only employees who need the information to perform a specific job (for example, our billing clerk or a customer service representative) are granted access to personally identifiable information. Finally, the servers that store personally identifiable information are in a secure environment, in a locked facility.
If we decide to change our privacy policy, we will post those changes to this privacy statement, the homepage, and other places we deem appropriate so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. We will use information in accordance with the privacy policy under which the information was collected. If, however, we are going to use users' personally identifiable information in a manner different from that stated at the time of collection we will notify users via email. Users will have a choice as to whether or not we use their information in this different manner. However, if users have opted out of all communication with the site, then they will not be contacted, nor will their personal information be used in this new manner. In addition, if we make any material changes in our privacy practices that do not affect user information already stored in our database, we will post a prominent notice on our Web site notifying users of the change. In some cases where we post a notice we will also email users, who have opted to receive communications from us, notifying them of the changes in our privacy practices.
Standard Terms and Conditions
Innovation Ads, Inc., a New York Corporation (“Company”), is placing advertising on behalf of the Client named on page one of the Insertion Order (“Client”) (collectively herein the “Parties”), and hereby agree that the advertising services to be provided by Company to Client , as specified in the Insertion Order (the “Services”) shall be governed by the following Standard Terms and Conditions which will govern the purchase of advertising services from Company by Client and the provision of Services by Company to Client. The type and nature of the Services to be provided by Company shall be hereafter agreed upon from time to time and shall be set forth in writing on one or more addenda (hereinafter, “Insertion Order/IO”) and executed, in writing, by both parties to this Agreement/K1V3. This Agreement between the parties shall constitute a binding agreement, the terms and conditions of which shall apply to each Insertion Order.
WHEREFORE the parties agree as follows:
1. AGENCY AND WARRANTIES
1.1. Client engages Company to perform on Client’s behalf, the Services related to advertising for the ad locations that the Client has selected. Company may place advertisements on Company owned or third-party internet web sites (“Media Sites”). Company acts solely as agent for the third-party media sites and assumes no responsibility for any acts or omissions arising from the media placement on said media sites.
1.2. Representations and Warranties. Notwithstanding anything to the contrary contained herein, neither party makes any warranties (including the implied warranties of merchantability, fitness for a particular purpose and non-infringement), guarantees, representations, promises, statements, estimates, conditions or other inducements, expressed, implied, oral, written or otherwise except as expressly set forth herein.
1.3. Company does not warrant or guarantee conversion rates, pay-up rates, response rates, advertising campaign success or ability to convert leads or responses into sales. Company does not warrant or guarantee the profile or demographics of an audience. Company does not guarantee to match colors, text, and photo image or screen design. Company will make every effort to meet scheduled delivery and online dates but Company makes no guarantee and accepts no liability for failure to meet said dates. All Services are contingent upon Company’s ability to serve the Media Site(s) and obtain necessary online access.
1.4. Each party represents and warrants to the other party that: (i) the execution of the Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate: any agreement to which such party is a party or by which it is otherwise bound, any applicable governmental law or regulation to which it is subject, or any trademark, copyright, intellectual property, or other third party right; (ii) when executed and delivered by such party, the Agreement will constitute the legal, valid, and binding obligation of such party in accordance with its terms; (iii) such party shall render all services to the other party in a professional and workmanlike manner, in accordance with generally accepted industry standards; and (iv) such party acknowledges that the other party makes no representations, warranties, or agreements related to subject matter not expressly provided for in the Agreement.
1.5. Company reserves the right to refuse any Advertising Banner, creative, copy, photographs or illustrations or other Client provided material that in Company’s sole and absolute discretion, is of any kind that Company in its sole judgment believes is an invasion of privacy, is degrading, libelous, unlawful, profane, obscene, pornographic, intends to ridicule, embarrass or is in bad taste, or which in Company’s sole judgment is an infringement on a trademark, trade name or copyright belonging to others, is inappropriate, improper, immoral, or illegal. Company reserves the sole and exclusive right to refuse any Advertising Banner or other Client provided material that does not arrive fifteen (15) days before the Flight Date.
2. CAMPAIGN CONFIRMATIONS AND CREATIVE
2.1. Campaign Run/Cancellations: Campaigns will run through flight dates provided for in the IO or until lead quantity (if applicable) is reached, whichever comes first. A lead or leads refers to the underlying user action generated data for a particular Campaign, as specified in the IO, which is then processed by the Company’s proprietary lead processing system and sent to Client in the agreed upon format (“Leads”). Client agrees to pay for all Leads notwithstanding whether a campaign is extended beyond flight dates. Upon Notice of cancellation Company will make every effort to cancel the Campaign, but Client agrees to pay for all leads up and until Company’s cancellation of the Campaign.
2.2. Confirmations: All telephone orders and/or orders placed on Client correspondence must be confirmed by Company and must be in writing on Company’s Insertion Order, unless agreed to in writing and signed by both parties.
2.3. Creative: Client agrees to submit to Company all necessary creatives for the campaign specified at least fifteen (15) business days prior to the start of the campaign. Client agrees that the creative must meet the specifications provided by each participating media site (“Site Specs”). Site Specs shall be provided to Client upon Client’s request. If the creative is not submitted within the time period set forth above Company may, in its sole discretion cancel the campaign. Any changes to the creative for any ongoing campaign require at least fifteen (15) business day’s prior notice.
2.4. Licenses: Client grants to Company the royalty-free non-exclusive license to copy, modify, publish and distribute the advertising banners, trademarks, service marks and other materials delivered by Client for publication on the Media Sites in accordance with this Agreement. As between Client and Company and the Media Sites, Client will continue to own any and all creative and other materials supplied to Company by Client, and nothing in this Agreement shall confer in Company or Media Sites any right of ownership of the creative or other materials supplied by Client. Client represents and warrants that: (a) It is the owner or is licensed to use the creative, (b) The creative is free of any virus or other defects, (c) The creative does not and will not infringe any copyright, trademark, patent or other proprietary right. Company shall have the right with or without notice, to terminate the graphics, text and/or URL contained in any creative at any time and for any reason without liability, and it is in Company’s sole discretion to do so.
2.5. Non-Viable Leads/Lead rejection: Client agrees to a maximum rejection rate of 10% for Non-Viable Leads; Non-Viable Leads shall include Leads that (a) contain inaccurate contact information (invalid e-mail address – if collected, invalid phone number – if collected, and invalid physical address - if collected) or (b) do not reasonably satisfy such other criteria as may be specifically enumerated on the IO. Rejection of any Non-Viable Leads by the Client must be justified on an individual basis. Client must notify Company within seven (7) days of receiving a Non-Viable Lead from Company of its rejection of the Non-Viable Lead and must return the Non-Viable Lead in the same file format received with a detailed description as to why each individual lead was rejected. If Client fails to notify company and return the Non-Viable Lead, as stated above, within seven (7) days Client agrees and understands that said lead shall be considered accepted and valid. It is Client’s responsibility to verify in writing that Company received the returned Non-Viable Leads.
2.6. Over Delivery: Company, in its sole discretion, may scrub ten percent (10%) of the Leads. Company may over deliver leads up to ten percent (10%). In the event that no leads are scrubbed by Company the Client will be liable for payment of the over delivered leads.
2.7. Set-Up Fee: If Client terminates prior to a Campaign launching, then Client shall pay to the Company a $5,000 Campaign set-up fee. In the event the campaign is launched and then cancelled by either party, and if the Company generates less than $5,000 in Leads, then Client shall pay to Company in addition to the Leads generated an amount equal to the difference between $5,000 and the amount of the generated Leads.
3. PAYMENT/PAYMENT LIABILITY
3.1. Terms of Payment: Client and its agent or agents will be joint and severally liable for all invoices. NO MEDIA WILL BE SCHEDULED FOR FLIGHT UNTIL CREDIT IS APPROVED BY COMPANY AND PAYMENT IS RECEIVED FROM CLIENT. Client shall pay Company the fees specified on the Insertion Order. Payment shall be due net seven (7) days after the Invoice Date. Payment for Advertisements pursuant to additional Insertion Orders shall be due net seven (7) days after the Invoice Date applicable to the respective additional Insertion Order. If payments are not made in a timely manner, Company, at its sole discretion, may exercise all available remedies against Client, including but not limited to, termination of this Agreement and/or removal of all Advertisements from the Company Web Site’s, or Media Sites. Upon notice to Client all payments for Services shall all then be immediately due and payable based upon the schedule (duration, location and rotation) of the advertisements actually completed, together with payment of a short rate charge calculated according to the manner in which Company determines its standard short rate charges (“Short Rate Policy”). Said Short Rate Policy shall be provided to Client upon Client’s request. If Client fails to pay any sums due to Company when due or in Company’s reasonable belief Client's credit has become impaired, then in either event, Company shall have the right to change the above-described payment terms to require payment in full before the Start Date for each Campaign. Client shall also pay all taxes and assessments resulting from this Agreement and the Insertion Orders. All payments due hereunder from Client are net amounts to be received by Company, exclusive of all taxes, duties, sales taxes, value added taxes, assessments, and similar taxes and duties, and are not subject to offset or reduction because of any costs, expenses, taxes, duties, assessments, or liabilities incurred by Client or imposed on Company in the performance of this Agreement or otherwise due as a result of this Agreement. Notwithstanding the foregoing, Company shall be responsible for the payment of any and all income taxes and income tax withholding of Company. Furthermore Client will pay for all leads validly delivered under the terms of this Agreement during the applicable calendar month regardless of length of campaign. Any and all sales, use, or other taxes shall be the sole responsibility of Client.
3.2.Counts: Client agrees that Company servers will be the official counter for determining the number of advertisements as defined in the IO (including but not limited to, impressions, clicks, emails, or leads) delivered under an applicable IO, and that it is within Company’s sole discretion to decide how such counts are tracked, counted, calculated, and reported. Client further agrees to pay Company, based on Company’s counts. Leads are delivered daily in a standard format unless otherwise agreed to in writing by both parties. All claims of format incompatibility are waived. Lead caps as specified in the IO, will be the aggregate figure of the campaign dates duration and are not to be construed on a daily basis.
3.3. iPMS Lead Tracking: Company shall grant Client access to Company’s proprietary lead counting and tracking web based service (“iPMS”). Company may at its sole discretion terminate Client’s access to iPMS. Company does not make any warranties or representations of any kind as to the iPMS service, including Client’s ability to access iPMS, its performance, or its content. Company reserves the right to modify the method and manner in which the iPMS service is provided. It is Clients responsibility to access iPMS to verify lead generation and the actual start of the Campaign. All claims of non-delivery or late delivery of the leads by Company are hereby waived by Client and all claims of “stale” leads as a result of Client’s failure to act upon their receipt of the leads are hereby waived by Client. Client shall be responsible for the downloading and/or the physical retrieval of any and all leads. Furthermore Company does not warrant and is not responsible for the actual delivery of the leads.
3.4. Further Representations: Client agrees to indemnify Company, and Client is solely responsible, for any legal liability arising out of or relating to (a) the Advertisement, and/or (b) any material to which users can link to through the Advertisement. Client represents and warrants that: (i) the Advertisement and Link comply with Company advertising standards and the CAN-SPAM Act of 2003; (ii) that Client owns all of the necessary rights to permit the publication, distribution, and use of the Advertisement and Link by Company for the purposes of this Agreement; and (iii) that the use, reproduction, distribution, or transmission of the Advertisement will not violate any criminal laws or any rights of any third parties, including, but not limited to, violations such as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary, property or other right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, or violation of any antidiscrimination law or regulation (collectively ''Indemnified Violation''). Client will continue to own any Advertising Banners and other materials supplied to Company by Client. Company shall own any and all works or creations prepared by Company’s employees or contractors, including without limitation those works and creations incorporated by Company into any Advertising Banner or other materials supplied by Client. Client shall not copy, modify, publish, distribute, or in any other way use any and all works and/or creations owned by Company without the express written permission of Company.
3.5. LIMITATIONS ON DAMAGES AND WARRANTIES: IN THE EVENT OF A BREACH OF ANY OF THE TERMS OF THIS AGREEMENT BY COMPANY, THE SOLE AND EXCLUSIVE REMEDY OF CLIENT AND ALL AGENTS SHALL BE RECOVERY OF DAMAGES NOT TO EXCEED THE AMOUNT PAID BY CLIENT FOR THE ADVERTISEMENT IN CONNECTION WITH WHICH THE BREACH OCCURRED. COMPANY SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICES AND PRODUCTS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT RESTRICTED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. CLIENT MAY ALSO HAVE OTHER RIGHTS THAT MAY VARY FROM STATE TO STATE.
COMPUTERS NEED ROUTINE MAINTENANCE AND SOMETIMES BREAK DOWN, COMPANY CANNOT CONTROL THE TIMING OR VOLUME OF ATTEMPTS TO ACCESS THE COMPANY WEB SITE OR MEDIA SITES; AS A RESULT COMPANY DOES NOT GUARANTEE THAT CLIENT OR ANY THIRD-PARTY WILL BE ABLE TO ACCESS THE COMPANY WEB SITE OR MEDIA SITES AT ANY PARTICULAR TIME. COMPANY SERVICES ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS.
3.5. Indemnification: Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party, its affiliates and subsidiaries and its and their respective directors, officers, employees and agents (collectively, the “Indemnified Party”) from and against any and all third-party claims, suits, actions, loss, cost, damage, liability, including, without limitation, reasonable fees and disbursements of counsel whether or not suit is brought or other expense resulting from the actual or alleged breach of any obligation, representation or warranty of the Indemnifying Party under this Agreement or from the actual or alleged negligent or wrongful acts or omissions of the Indemnifying Party or the Indemnifying Party’s affiliates, including its or their respective directors, officers, employees, or agents taken in connection with this Agreement, provided that the Indemnified Party shall give the Indemnifying Party prompt written notice of any claim for indemnification hereunder and provided further that the Indemnified Party shall permit the Indemnifying Party to control the defense or settlement of any such claim or cause of action (utilizing counsel reasonably satisfactory to the Indemnified Party). The Indemnified Party shall provide full information and reasonable assistance to the Indemnifying Party as required to settle or defend any such claim. The Indemnifying Party shall permit the Indemnified party to monitor any defense or settlement conducted by the Indemnifying Party and the Indemnifying Party shall not settle any such Claim without the Indemnified Party’s prior written approval (not to be unreasonably withheld in light of the nature of the claim and the terms and conditions of the proposed settlement).
3.6. AD Materials: It is the Client’s obligation to submit advertising materials (defined as artwork, active URL’s and active target site) to Company’s reasonable satisfaction and specifications (including content limitations, technical specifications and material due dates) as provided for on the relevant IO. Company reserves the right within its discretion to reject any advertising materials that do not comply with Company policies, criteria, specifications, or any applicable law (Company shall provide Client with copies of said Company policies, criteria, and specifications).
4. NON-COMPETE NON-CIRCUMVENTION
4.1. During the term of this Agreement and for a period of 180 days thereafter, Client agrees that it will not engage, contract with, license, or permit any person, firm, or entity to represent Client in any performance-based advertising relationship with any of Company web site partners, Media Sites, affiliates, including, without limitation, those that are part of the Company network of websites or any entity that was such a partner or affiliate of Company as of six (6) months prior to the conclusion or termination of this Agreement, without prior written approval by authorized party at Company.
5. PUBLICITY RIGHTS
5.1. Company reserves the right to include Client name in any reasonable advertisement, publication, press release or promotional material, subject to approval by the Client not to be unreasonably withheld. Upon request, Client will supply Company with at least one (1) digital copy of art and/or other possible promotional materials produced that may be copied, printed, and/or distributed at conferences, signings, mailings, trade shows, etc.
6. ENFORCEMENT
6.1. Governing Law and Jurisdiction: This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties agree thatexclusive jurisdiction for any disputes arising between the parties to this Agreement shall be brought in the federal and state courts within the State of Florida and both parties waive any defense of personal jurisdiction in those courts.
6.2. Attorneys Fees and Costs: The parties shall be entitled to recover, in addition to costs and disbursements allowed by law, reasonable attorney’s fees, litigation costs, and expenses in connection with enforcement of this agreement, including pre-litigation attorney fees and costs and such fees shall be awarded to the prevailing party. Invalidation of any one of the covenants or terms of this Agreement, by judgment of a court, shall not affect any of the other provisions of this Agreement which shall remain in full force and effect.
6.3. Arbitration in Florida: Any and all disputes or claims arising out of and/or related to this Agreement, its performance, breach, or interpretation thereof (including issues about its validity or enforceability), shall be exclusively (except as provided below) resolved by binding arbitration utilizing the Commercial Arbitration Rules promulgated by the American Arbitration Association (AAA). For all disputes under three hundred thousand dollars ($300,000.00) one arbitrator shall be selected using AAA’s procedures. For all disputes over three hundred thousand dollars ($300,000.00) three (3) arbitrators shall be selected using AAA procedures. The arbitrator(s) shall use all reasonable efforts to minimize discovery and to complete the arbitration proceedings as expeditiously as possible. Depositions shall not be allowed. The Arbitrator(s) shall render a written decision within thirty (30) calendar days of the hearing. The arbitrator(s) shall only determine the issue of entitlement to attorney’s fees and shall award attorneys fees, the amount of which shall be determined in accordance with Florida Law. Additionally the arbitrator shall award to the prevailing party all costs associated with the Arbitration incurred by the prevailing party, including but not limited to, filing fee, case management fee, administrative fees, copying, and arbitrators fee, but will not award punitive, incidental, consequential, treble or other multiple or exemplary damages, and the parties hereby agree to waive and not seek such damages. Either party may seek judicial relief to compel the other party to comply with the provisions of this Section, or injunctive or other equitable relief to protect its interests, provided (unless prohibited by applicable law) that the remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Palm Beach County, Florida; both parties hereby give their irrevocable consent to jurisdiction of courts of or in the State of Florida, as well as processes of the AAA in Florida. All awards may be filed with one or more courts, state, federal or foreign having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection. This agreement does not preclude the parties from seeking injunctive relief prior to arbitration in the proper courts. Furthermore the parties agree that any and all awards and settlements will be confidential and the parties will not communicate, publish, or transmit such information to a third party without consent of all parties to this agreement.
6.4. Liquidated Damages: The parties hereto agree that breach of this contract by Client will entitle Company to keep as liquidated damages any monies paid to Company, including but not limited to monies paid in advance, deposits, or any instruments of value which Company may hold. Furthermore in the event of such breach, any creative, artwork, work product, leads, or Media Type as defined in the IO, which Company may hold or possess, will become the property of Company and Client waives all interests to such items and claims. Liquidation of such damages shall not preclude Company from seeking any other necessary, remedy, relief, or compensation, at law or in equity, for which Company is entitled.
7. RULES OF CONSTRUCTION
7.1. Rule of Construction: The preparation of this Agreement has been a joint effort of the parties, and each of the parties has participated fully in the negotiation and preparation hereof. Therefore, any rule of judicial construction that an agreement is to be construed more strictly against one of the parties than the other shall not apply and has no effect.
7.2. Amendment and Modification: No change, amendment, modification, termination or attempted waiver of any of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of the respective parties hereto, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein.
7.4. Non-Waiver: Either party’s failure to require the other party’s performance of any term or condition of this Agreement shall not constitute a waiver and shall not affect the right of such party to later enforce such provision, unless such waiver is made expressly in writing signed by an authorized representative of the waiving party. No waiver of any breach of any provision of this 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.
7.5. Force Majeure: Neither party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by, or due to fire, flood, water, the elements, acts of God, war, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the effected party’s reasonable control. The party so delayed or prevented from performing shall provide prompt notice of such event to the other party and shall exercise good faith efforts to remedy any such cause of delay or cause preventing performance.
7.6. Confidentiality: Neither party to this Agreement shall disclose the terms and conditions of this Agreement to any third party, nor will either party issue a press release and/or otherwise disclose the existence of this Agreement to the media or general public, without the express written consent of the other. During the term of this Agreement, either party may obtain confidential or proprietary information regarding the other party or its affiliates (“Confidential Information”). The receiving party shall hold such Confidential Information in strict confidence and shall not reveal same without the express prior written consent of the other party. Should either party violate this provision, the offended party shall be entitled to terminate this Agreement and obtain immediate injunctive relief in addition to any other legal rights and remedies available to such offended party. Performance statistics of the campaign are considered confidential.
7.7. Good Faith: All parties agree to act in good faith at all times and to abide by all terms and conditions set forth herein in such a manner.
7.8. Integration: This Agreement does not constitute an offer by either party and it shall not be effective until signed or agreed to by both parties as provided for herein. Upon execution by both parties, this Agreement and all exhibits and attachments shall constitute the entire agreement between the parties with respect to the subject matter hereof and shall be deemed to merge all prior and contemporaneous agreements, communications and understandings (both written and oral). The terms and conditions of this Agreement will prevail over any contrary or inconsistent terms in any Insertion Order.
7.9. Modification and Severability: In the event of any inconsistency between the terms of an IO and these Standard Terms and Conditions, the Standard Terms and Conditions will prevail. No modification of these Standard Terms and Conditions or any IO shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative. Any provision of this instrument prohibited by law in any state shall, as to such state, be ineffective to the extent of such prohibition, without invalidating the remaining provisions of this instrument.
7.10. Term: This Agreement is effective as of the Acceptance Date or Insertion Order date, and shall remain in effect for the number of months identified in the relevant Insertion Order unless terminated as provided for in this agreement (“Initial Term”). After the Initial Term, additional renewal terms may be negotiated at the parties’ discretion and shall be agreed to in writing.
7.11. Termination: Either party may terminate this Agreement according to the terms herein for whatever reason in its sole discretion upon proper written Notice to the other party as outlined in this paragraph. This agreement is non-terminable for the first quarter of the allotted time period the agreement is scheduled for pursuant to the Insertion Order. Thereafter Client may, upon at least thirty (30) days written notice prior to each additional quarter contracted for, at its option reduce the quantity of leads contracted for by up to, but not exceeding, fifty (50%) percent for the remaining period of the contract. Client must give at least sixty (60) days written notice of impending total cancellation and/or termination of this agreement, and total cancellation and/or termination of this agreement can not be elected by Client until the end of the second quarter of the period contracted for. Company shall have the right to terminate this Agreement by providing written notice to Client; (i) if Client has not paid any amount due in accordance with Section 3.1 Company may cancel this Agreement immediately at its sole discretion; or (ii) upon the breach of a material term of this Agreement by Client if Client has not cured such material breach within thirty (30) days of Client’s receipt of written notice of such breach. Upon termination of this Agreement by Company, Client shall be liable and shall pay for the campaign’s full term amounts as identified in the Insertion Order, payable through the end of the Initial Term or Renewal Term, whether or not any or all said amounts are due or have accrued as of the date of termination. All payment obligations of Client shall survive any termination or expiration of the Term of this Agreement. All sums owed by Client to Company shall be immediately due and payable upon termination or expiration of the Term of this Agreement.
7.12. Assignment: Client shall not assign this Agreement and any rights or obligations hereunder without the express written approval of Company which approval shall not be unreasonably withheld. In addition, Client shall not submit Advertisements or Advertising Banners files that promote or advertise the products or services of any other company without the prior express written permission of Company. Any transfer of control of substantially all of the assets or business of Client to a third party by any means, including without limitation, stock acquisition or merger, shall be deemed to be an assignment for purposes of this section. Company shall be entitled to assign this Agreement without limitation.
7.13. Notice: All notices, requests, demands, and other communications to Company hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following address (or other address as shall be specified by like notice and made to the attention of both the CEO and General Counsel):
Innovation Ads, Inc.
Legal Department
233 Broadway
21st Floor
New York, NY 10007
7.14. Additional Insertion Orders: Company and Client may enter joint additional Insertion Orders by authorized representatives of both parties hereto by signing such Insertion Order, which shall automatically be subject to the Standard Terms and Conditions hereof and become part of this Agreement.
7.15. Agent for Advertiser or Third Party: Client shall disclose to Company if it is acting as an agent for Advertiser or Third Party, and Client agrees to provide Company written proof of any agency or third party relationship, upon Company’s Request. Client further agrees and warrants that if it is acting as an agent or agency that it is authorized to bind, and will bind, the third party to this Agreement and the Standard Terms and Conditions hereto, and that the third party will be jointly and severally liable with client for all invoices and payments due and owing to Company.
7.16. Survival: Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
8. AUTHORIZED REPRESENTATIVES
8.1. Client’s authorized representative for execution of this Agreement or any amendment hereto shall have the requisite authority to bind Client to this Agreement and warrant that they have the requisite authority to do so.
8.2. Acceptance of the IO and this Agreement by Company will be made upon written or electronic approval by an authorized representative of Company having the requisite authority to bind Company and/or by any action evincing any type performance by Company, however minimal, including but not limited to the display of the first ad impression by Company, delivery of the first record, email, mailing, generation of leads, reporting of leads, or delivery of leads.
Innovation Ads, Inc., a New York Corporation (“Company”), is placing advertising on behalf of the Client named on page one of the Insertion Order (“Client”) (collectively herein the “Parties”), and hereby agree that the advertising services to be provided by Company to Client , as specified in the Insertion Order (the “Services”) shall be governed by the following Standard Terms and Conditions which will govern the purchase of advertising services from Company by Client and the provision of Services by Company to Client. The type and nature of the Services to be provided by Company shall be hereafter agreed upon from time to time and shall be set forth in writing on one or more addenda (hereinafter, “Insertion Order/IO”) and executed, in writing, by both parties to this Agreement/K1V3. This Agreement between the parties shall constitute a binding agreement, the terms and conditions of which shall apply to each Insertion Order.
WHEREFORE the parties agree as follows:
1. AGENCY AND WARRANTIES
1.1. Client engages Company to perform on Client’s behalf, the Services related to advertising for the ad locations that the Client has selected. Company may place advertisements on Company owned or third-party internet web sites (“Media Sites”). Company acts solely as agent for the third-party media sites and assumes no responsibility for any acts or omissions arising from the media placement on said media sites.
1.2. Representations and Warranties. Notwithstanding anything to the contrary contained herein, neither party makes any warranties (including the implied warranties of merchantability, fitness for a particular purpose and non-infringement), guarantees, representations, promises, statements, estimates, conditions or other inducements, expressed, implied, oral, written or otherwise except as expressly set forth herein.
1.3. Company does not warrant or guarantee conversion rates, pay-up rates, response rates, advertising campaign success or ability to convert leads or responses into sales. Company does not warrant or guarantee the profile or demographics of an audience. Company does not guarantee to match colors, text, and photo image or screen design. Company will make every effort to meet scheduled delivery and online dates but Company makes no guarantee and accepts no liability for failure to meet said dates. All Services are contingent upon Company’s ability to serve the Media Site(s) and obtain necessary online access.
1.4. Each party represents and warrants to the other party that: (i) the execution of the Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate: any agreement to which such party is a party or by which it is otherwise bound, any applicable governmental law or regulation to which it is subject, or any trademark, copyright, intellectual property, or other third party right; (ii) when executed and delivered by such party, the Agreement will constitute the legal, valid, and binding obligation of such party in accordance with its terms; (iii) such party shall render all services to the other party in a professional and workmanlike manner, in accordance with generally accepted industry standards; and (iv) such party acknowledges that the other party makes no representations, warranties, or agreements related to subject matter not expressly provided for in the Agreement.
1.5. Company reserves the right to refuse any Advertising Banner, creative, copy, photographs or illustrations or other Client provided material that in Company’s sole and absolute discretion, is of any kind that Company in its sole judgment believes is an invasion of privacy, is degrading, libelous, unlawful, profane, obscene, pornographic, intends to ridicule, embarrass or is in bad taste, or which in Company’s sole judgment is an infringement on a trademark, trade name or copyright belonging to others, is inappropriate, improper, immoral, or illegal. Company reserves the sole and exclusive right to refuse any Advertising Banner or other Client provided material that does not arrive fifteen (15) days before the Flight Date.
2. CAMPAIGN CONFIRMATIONS AND CREATIVE
2.1. Campaign Run/Cancellations: Campaigns will run through flight dates provided for in the IO or until lead quantity (if applicable) is reached, whichever comes first. A lead or leads refers to the underlying user action generated data for a particular Campaign, as specified in the IO, which is then processed by the Company’s proprietary lead processing system and sent to Client in the agreed upon format (“Leads”). Client agrees to pay for all Leads notwithstanding whether a campaign is extended beyond flight dates. Upon Notice of cancellation Company will make every effort to cancel the Campaign, but Client agrees to pay for all leads up and until Company’s cancellation of the Campaign.
2.2. Confirmations: All telephone orders and/or orders placed on Client correspondence must be confirmed by Company and must be in writing on Company’s Insertion Order, unless agreed to in writing and signed by both parties.
2.3. Creative: Client agrees to submit to Company all necessary creatives for the campaign specified at least fifteen (15) business days prior to the start of the campaign. Client agrees that the creative must meet the specifications provided by each participating media site (“Site Specs”). Site Specs shall be provided to Client upon Client’s request. If the creative is not submitted within the time period set forth above Company may, in its sole discretion cancel the campaign. Any changes to the creative for any ongoing campaign require at least fifteen (15) business day’s prior notice.
2.4. Licenses: Client grants to Company the royalty-free non-exclusive license to copy, modify, publish and distribute the advertising banners, trademarks, service marks and other materials delivered by Client for publication on the Media Sites in accordance with this Agreement. As between Client and Company and the Media Sites, Client will continue to own any and all creative and other materials supplied to Company by Client, and nothing in this Agreement shall confer in Company or Media Sites any right of ownership of the creative or other materials supplied by Client. Client represents and warrants that: (a) It is the owner or is licensed to use the creative, (b) The creative is free of any virus or other defects, (c) The creative does not and will not infringe any copyright, trademark, patent or other proprietary right. Company shall have the right with or without notice, to terminate the graphics, text and/or URL contained in any creative at any time and for any reason without liability, and it is in Company’s sole discretion to do so.
2.5. Non-Viable Leads/Lead rejection: Client agrees to a maximum rejection rate of 10% for Non-Viable Leads; Non-Viable Leads shall include Leads that (a) contain inaccurate contact information (invalid e-mail address – if collected, invalid phone number – if collected, and invalid physical address - if collected) or (b) do not reasonably satisfy such other criteria as may be specifically enumerated on the IO. Rejection of any Non-Viable Leads by the Client must be justified on an individual basis. Client must notify Company within seven (7) days of receiving a Non-Viable Lead from Company of its rejection of the Non-Viable Lead and must return the Non-Viable Lead in the same file format received with a detailed description as to why each individual lead was rejected. If Client fails to notify company and return the Non-Viable Lead, as stated above, within seven (7) days Client agrees and understands that said lead shall be considered accepted and valid. It is Client’s responsibility to verify in writing that Company received the returned Non-Viable Leads.
2.6. Over Delivery: Company, in its sole discretion, may scrub ten percent (10%) of the Leads. Company may over deliver leads up to ten percent (10%). In the event that no leads are scrubbed by Company the Client will be liable for payment of the over delivered leads.
2.7. Set-Up Fee: If Client terminates prior to a Campaign launching, then Client shall pay to the Company a $5,000 Campaign set-up fee. In the event the campaign is launched and then cancelled by either party, and if the Company generates less than $5,000 in Leads, then Client shall pay to Company in addition to the Leads generated an amount equal to the difference between $5,000 and the amount of the generated Leads.
3. PAYMENT/PAYMENT LIABILITY
3.1. Terms of Payment: Client and its agent or agents will be joint and severally liable for all invoices. NO MEDIA WILL BE SCHEDULED FOR FLIGHT UNTIL CREDIT IS APPROVED BY COMPANY AND PAYMENT IS RECEIVED FROM CLIENT. Client shall pay Company the fees specified on the Insertion Order. Payment shall be due net seven (7) days after the Invoice Date. Payment for Advertisements pursuant to additional Insertion Orders shall be due net seven (7) days after the Invoice Date applicable to the respective additional Insertion Order. If payments are not made in a timely manner, Company, at its sole discretion, may exercise all available remedies against Client, including but not limited to, termination of this Agreement and/or removal of all Advertisements from the Company Web Site’s, or Media Sites. Upon notice to Client all payments for Services shall all then be immediately due and payable based upon the schedule (duration, location and rotation) of the advertisements actually completed, together with payment of a short rate charge calculated according to the manner in which Company determines its standard short rate charges (“Short Rate Policy”). Said Short Rate Policy shall be provided to Client upon Client’s request. If Client fails to pay any sums due to Company when due or in Company’s reasonable belief Client's credit has become impaired, then in either event, Company shall have the right to change the above-described payment terms to require payment in full before the Start Date for each Campaign. Client shall also pay all taxes and assessments resulting from this Agreement and the Insertion Orders. All payments due hereunder from Client are net amounts to be received by Company, exclusive of all taxes, duties, sales taxes, value added taxes, assessments, and similar taxes and duties, and are not subject to offset or reduction because of any costs, expenses, taxes, duties, assessments, or liabilities incurred by Client or imposed on Company in the performance of this Agreement or otherwise due as a result of this Agreement. Notwithstanding the foregoing, Company shall be responsible for the payment of any and all income taxes and income tax withholding of Company. Furthermore Client will pay for all leads validly delivered under the terms of this Agreement during the applicable calendar month regardless of length of campaign. Any and all sales, use, or other taxes shall be the sole responsibility of Client.
3.2.Counts: Client agrees that Company servers will be the official counter for determining the number of advertisements as defined in the IO (including but not limited to, impressions, clicks, emails, or leads) delivered under an applicable IO, and that it is within Company’s sole discretion to decide how such counts are tracked, counted, calculated, and reported. Client further agrees to pay Company, based on Company’s counts. Leads are delivered daily in a standard format unless otherwise agreed to in writing by both parties. All claims of format incompatibility are waived. Lead caps as specified in the IO, will be the aggregate figure of the campaign dates duration and are not to be construed on a daily basis.
3.3. iPMS Lead Tracking: Company shall grant Client access to Company’s proprietary lead counting and tracking web based service (“iPMS”). Company may at its sole discretion terminate Client’s access to iPMS. Company does not make any warranties or representations of any kind as to the iPMS service, including Client’s ability to access iPMS, its performance, or its content. Company reserves the right to modify the method and manner in which the iPMS service is provided. It is Clients responsibility to access iPMS to verify lead generation and the actual start of the Campaign. All claims of non-delivery or late delivery of the leads by Company are hereby waived by Client and all claims of “stale” leads as a result of Client’s failure to act upon their receipt of the leads are hereby waived by Client. Client shall be responsible for the downloading and/or the physical retrieval of any and all leads. Furthermore Company does not warrant and is not responsible for the actual delivery of the leads.
3.4. Further Representations: Client agrees to indemnify Company, and Client is solely responsible, for any legal liability arising out of or relating to (a) the Advertisement, and/or (b) any material to which users can link to through the Advertisement. Client represents and warrants that: (i) the Advertisement and Link comply with Company advertising standards and the CAN-SPAM Act of 2003; (ii) that Client owns all of the necessary rights to permit the publication, distribution, and use of the Advertisement and Link by Company for the purposes of this Agreement; and (iii) that the use, reproduction, distribution, or transmission of the Advertisement will not violate any criminal laws or any rights of any third parties, including, but not limited to, violations such as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary, property or other right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, or violation of any antidiscrimination law or regulation (collectively ''Indemnified Violation''). Client will continue to own any Advertising Banners and other materials supplied to Company by Client. Company shall own any and all works or creations prepared by Company’s employees or contractors, including without limitation those works and creations incorporated by Company into any Advertising Banner or other materials supplied by Client. Client shall not copy, modify, publish, distribute, or in any other way use any and all works and/or creations owned by Company without the express written permission of Company.
3.5. LIMITATIONS ON DAMAGES AND WARRANTIES: IN THE EVENT OF A BREACH OF ANY OF THE TERMS OF THIS AGREEMENT BY COMPANY, THE SOLE AND EXCLUSIVE REMEDY OF CLIENT AND ALL AGENTS SHALL BE RECOVERY OF DAMAGES NOT TO EXCEED THE AMOUNT PAID BY CLIENT FOR THE ADVERTISEMENT IN CONNECTION WITH WHICH THE BREACH OCCURRED. COMPANY SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS WITH RESPECT TO THE SERVICES AND PRODUCTS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT RESTRICTED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CLIENT. CLIENT MAY ALSO HAVE OTHER RIGHTS THAT MAY VARY FROM STATE TO STATE.
COMPUTERS NEED ROUTINE MAINTENANCE AND SOMETIMES BREAK DOWN, COMPANY CANNOT CONTROL THE TIMING OR VOLUME OF ATTEMPTS TO ACCESS THE COMPANY WEB SITE OR MEDIA SITES; AS A RESULT COMPANY DOES NOT GUARANTEE THAT CLIENT OR ANY THIRD-PARTY WILL BE ABLE TO ACCESS THE COMPANY WEB SITE OR MEDIA SITES AT ANY PARTICULAR TIME. COMPANY SERVICES ARE PROVIDED ON AN “AS-IS, AS-AVAILABLE” BASIS.
3.5. Indemnification: Each party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other party, its affiliates and subsidiaries and its and their respective directors, officers, employees and agents (collectively, the “Indemnified Party”) from and against any and all third-party claims, suits, actions, loss, cost, damage, liability, including, without limitation, reasonable fees and disbursements of counsel whether or not suit is brought or other expense resulting from the actual or alleged breach of any obligation, representation or warranty of the Indemnifying Party under this Agreement or from the actual or alleged negligent or wrongful acts or omissions of the Indemnifying Party or the Indemnifying Party’s affiliates, including its or their respective directors, officers, employees, or agents taken in connection with this Agreement, provided that the Indemnified Party shall give the Indemnifying Party prompt written notice of any claim for indemnification hereunder and provided further that the Indemnified Party shall permit the Indemnifying Party to control the defense or settlement of any such claim or cause of action (utilizing counsel reasonably satisfactory to the Indemnified Party). The Indemnified Party shall provide full information and reasonable assistance to the Indemnifying Party as required to settle or defend any such claim. The Indemnifying Party shall permit the Indemnified party to monitor any defense or settlement conducted by the Indemnifying Party and the Indemnifying Party shall not settle any such Claim without the Indemnified Party’s prior written approval (not to be unreasonably withheld in light of the nature of the claim and the terms and conditions of the proposed settlement).
3.6. AD Materials: It is the Client’s obligation to submit advertising materials (defined as artwork, active URL’s and active target site) to Company’s reasonable satisfaction and specifications (including content limitations, technical specifications and material due dates) as provided for on the relevant IO. Company reserves the right within its discretion to reject any advertising materials that do not comply with Company policies, criteria, specifications, or any applicable law (Company shall provide Client with copies of said Company policies, criteria, and specifications).
4. NON-COMPETE NON-CIRCUMVENTION
4.1. During the term of this Agreement and for a period of 180 days thereafter, Client agrees that it will not engage, contract with, license, or permit any person, firm, or entity to represent Client in any performance-based advertising relationship with any of Company web site partners, Media Sites, affiliates, including, without limitation, those that are part of the Company network of websites or any entity that was such a partner or affiliate of Company as of six (6) months prior to the conclusion or termination of this Agreement, without prior written approval by authorized party at Company.
5. PUBLICITY RIGHTS
5.1. Company reserves the right to include Client name in any reasonable advertisement, publication, press release or promotional material, subject to approval by the Client not to be unreasonably withheld. Upon request, Client will supply Company with at least one (1) digital copy of art and/or other possible promotional materials produced that may be copied, printed, and/or distributed at conferences, signings, mailings, trade shows, etc.
6. ENFORCEMENT
6.1. Governing Law and Jurisdiction: This Agreement shall be construed and enforced in accordance with the laws of the State of Florida. The parties agree thatexclusive jurisdiction for any disputes arising between the parties to this Agreement shall be brought in the federal and state courts within the State of Florida and both parties waive any defense of personal jurisdiction in those courts.
6.2. Attorneys Fees and Costs: The parties shall be entitled to recover, in addition to costs and disbursements allowed by law, reasonable attorney’s fees, litigation costs, and expenses in connection with enforcement of this agreement, including pre-litigation attorney fees and costs and such fees shall be awarded to the prevailing party. Invalidation of any one of the covenants or terms of this Agreement, by judgment of a court, shall not affect any of the other provisions of this Agreement which shall remain in full force and effect.
6.3. Arbitration in Florida: Any and all disputes or claims arising out of and/or related to this Agreement, its performance, breach, or interpretation thereof (including issues about its validity or enforceability), shall be exclusively (except as provided below) resolved by binding arbitration utilizing the Commercial Arbitration Rules promulgated by the American Arbitration Association (AAA). For all disputes under three hundred thousand dollars ($300,000.00) one arbitrator shall be selected using AAA’s procedures. For all disputes over three hundred thousand dollars ($300,000.00) three (3) arbitrators shall be selected using AAA procedures. The arbitrator(s) shall use all reasonable efforts to minimize discovery and to complete the arbitration proceedings as expeditiously as possible. Depositions shall not be allowed. The Arbitrator(s) shall render a written decision within thirty (30) calendar days of the hearing. The arbitrator(s) shall only determine the issue of entitlement to attorney’s fees and shall award attorneys fees, the amount of which shall be determined in accordance with Florida Law. Additionally the arbitrator shall award to the prevailing party all costs associated with the Arbitration incurred by the prevailing party, including but not limited to, filing fee, case management fee, administrative fees, copying, and arbitrators fee, but will not award punitive, incidental, consequential, treble or other multiple or exemplary damages, and the parties hereby agree to waive and not seek such damages. Either party may seek judicial relief to compel the other party to comply with the provisions of this Section, or injunctive or other equitable relief to protect its interests, provided (unless prohibited by applicable law) that the remainder of the dispute or claim is submitted to arbitration. The arbitration shall be held in Palm Beach County, Florida; both parties hereby give their irrevocable consent to jurisdiction of courts of or in the State of Florida, as well as processes of the AAA in Florida. All awards may be filed with one or more courts, state, federal or foreign having jurisdiction over the party against whom such award is rendered or its property, as a basis of judgment and of the issuance of execution for its collection. This agreement does not preclude the parties from seeking injunctive relief prior to arbitration in the proper courts. Furthermore the parties agree that any and all awards and settlements will be confidential and the parties will not communicate, publish, or transmit such information to a third party without consent of all parties to this agreement.
6.4. Liquidated Damages: The parties hereto agree that breach of this contract by Client will entitle Company to keep as liquidated damages any monies paid to Company, including but not limited to monies paid in advance, deposits, or any instruments of value which Company may hold. Furthermore in the event of such breach, any creative, artwork, work product, leads, or Media Type as defined in the IO, which Company may hold or possess, will become the property of Company and Client waives all interests to such items and claims. Liquidation of such damages shall not preclude Company from seeking any other necessary, remedy, relief, or compensation, at law or in equity, for which Company is entitled.
7. RULES OF CONSTRUCTION
7.1. Rule of Construction: The preparation of this Agreement has been a joint effort of the parties, and each of the parties has participated fully in the negotiation and preparation hereof. Therefore, any rule of judicial construction that an agreement is to be construed more strictly against one of the parties than the other shall not apply and has no effect.
7.2. Amendment and Modification: No change, amendment, modification, termination or attempted waiver of any of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of the respective parties hereto, and no representation, promise, inducement or statement of intention has been made by either party which is not embodied herein.
7.4. Non-Waiver: Either party’s failure to require the other party’s performance of any term or condition of this Agreement shall not constitute a waiver and shall not affect the right of such party to later enforce such provision, unless such waiver is made expressly in writing signed by an authorized representative of the waiving party. No waiver of any breach of any provision of this 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.
7.5. Force Majeure: Neither party shall be liable for service interruptions, delays, failure to perform, damages, losses or destruction, or malfunction of any consequence thereof caused or occasioned by, or due to fire, flood, water, the elements, acts of God, war, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond the effected party’s reasonable control. The party so delayed or prevented from performing shall provide prompt notice of such event to the other party and shall exercise good faith efforts to remedy any such cause of delay or cause preventing performance.
7.6. Confidentiality: Neither party to this Agreement shall disclose the terms and conditions of this Agreement to any third party, nor will either party issue a press release and/or otherwise disclose the existence of this Agreement to the media or general public, without the express written consent of the other. During the term of this Agreement, either party may obtain confidential or proprietary information regarding the other party or its affiliates (“Confidential Information”). The receiving party shall hold such Confidential Information in strict confidence and shall not reveal same without the express prior written consent of the other party. Should either party violate this provision, the offended party shall be entitled to terminate this Agreement and obtain immediate injunctive relief in addition to any other legal rights and remedies available to such offended party. Performance statistics of the campaign are considered confidential.
7.7. Good Faith: All parties agree to act in good faith at all times and to abide by all terms and conditions set forth herein in such a manner.
7.8. Integration: This Agreement does not constitute an offer by either party and it shall not be effective until signed or agreed to by both parties as provided for herein. Upon execution by both parties, this Agreement and all exhibits and attachments shall constitute the entire agreement between the parties with respect to the subject matter hereof and shall be deemed to merge all prior and contemporaneous agreements, communications and understandings (both written and oral). The terms and conditions of this Agreement will prevail over any contrary or inconsistent terms in any Insertion Order.
7.9. Modification and Severability: In the event of any inconsistency between the terms of an IO and these Standard Terms and Conditions, the Standard Terms and Conditions will prevail. No modification of these Standard Terms and Conditions or any IO shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative. Any provision of this instrument prohibited by law in any state shall, as to such state, be ineffective to the extent of such prohibition, without invalidating the remaining provisions of this instrument.
7.10. Term: This Agreement is effective as of the Acceptance Date or Insertion Order date, and shall remain in effect for the number of months identified in the relevant Insertion Order unless terminated as provided for in this agreement (“Initial Term”). After the Initial Term, additional renewal terms may be negotiated at the parties’ discretion and shall be agreed to in writing.
7.11. Termination: Either party may terminate this Agreement according to the terms herein for whatever reason in its sole discretion upon proper written Notice to the other party as outlined in this paragraph. This agreement is non-terminable for the first quarter of the allotted time period the agreement is scheduled for pursuant to the Insertion Order. Thereafter Client may, upon at least thirty (30) days written notice prior to each additional quarter contracted for, at its option reduce the quantity of leads contracted for by up to, but not exceeding, fifty (50%) percent for the remaining period of the contract. Client must give at least sixty (60) days written notice of impending total cancellation and/or termination of this agreement, and total cancellation and/or termination of this agreement can not be elected by Client until the end of the second quarter of the period contracted for. Company shall have the right to terminate this Agreement by providing written notice to Client; (i) if Client has not paid any amount due in accordance with Section 3.1 Company may cancel this Agreement immediately at its sole discretion; or (ii) upon the breach of a material term of this Agreement by Client if Client has not cured such material breach within thirty (30) days of Client’s receipt of written notice of such breach. Upon termination of this Agreement by Company, Client shall be liable and shall pay for the campaign’s full term amounts as identified in the Insertion Order, payable through the end of the Initial Term or Renewal Term, whether or not any or all said amounts are due or have accrued as of the date of termination. All payment obligations of Client shall survive any termination or expiration of the Term of this Agreement. All sums owed by Client to Company shall be immediately due and payable upon termination or expiration of the Term of this Agreement.
7.12. Assignment: Client shall not assign this Agreement and any rights or obligations hereunder without the express written approval of Company which approval shall not be unreasonably withheld. In addition, Client shall not submit Advertisements or Advertising Banners files that promote or advertise the products or services of any other company without the prior express written permission of Company. Any transfer of control of substantially all of the assets or business of Client to a third party by any means, including without limitation, stock acquisition or merger, shall be deemed to be an assignment for purposes of this section. Company shall be entitled to assign this Agreement without limitation.
7.13. Notice: All notices, requests, demands, and other communications to Company hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following address (or other address as shall be specified by like notice and made to the attention of both the CEO and General Counsel):
Innovation Ads, Inc.
Legal Department
233 Broadway
21st Floor
New York, NY 10007
7.14. Additional Insertion Orders: Company and Client may enter joint additional Insertion Orders by authorized representatives of both parties hereto by signing such Insertion Order, which shall automatically be subject to the Standard Terms and Conditions hereof and become part of this Agreement.
7.15. Agent for Advertiser or Third Party: Client shall disclose to Company if it is acting as an agent for Advertiser or Third Party, and Client agrees to provide Company written proof of any agency or third party relationship, upon Company’s Request. Client further agrees and warrants that if it is acting as an agent or agency that it is authorized to bind, and will bind, the third party to this Agreement and the Standard Terms and Conditions hereto, and that the third party will be jointly and severally liable with client for all invoices and payments due and owing to Company.
7.16. Survival: Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of the Agreement shall survive and remain in effect after such happening.
8. AUTHORIZED REPRESENTATIVES
8.1. Client’s authorized representative for execution of this Agreement or any amendment hereto shall have the requisite authority to bind Client to this Agreement and warrant that they have the requisite authority to do so.
8.2. Acceptance of the IO and this Agreement by Company will be made upon written or electronic approval by an authorized representative of Company having the requisite authority to bind Company and/or by any action evincing any type performance by Company, however minimal, including but not limited to the display of the first ad impression by Company, delivery of the first record, email, mailing, generation of leads, reporting of leads, or delivery of leads.
