Terms & Conditions
1. ADVERTISING AGREEMENT
GMBDirect ("the Company") agrees to incorporate the Advertiser's links, graphics or other content (collectively, the "ads") into websites and/or mailings owned and/or produced by the Company, as specified in your Insertion Order ("IO"). The IO, together with these Terms and Conditions constitute a single Agreement and are referred to hereafter collectively as the "Agreement").
2. DEFINITIONS
"CPA" means cost per acquisition.
"CPC" means cost per click-through.
"CPM" means cost per thousand.
"Flat Rate" means a flat charge for the total number of ads run or delivered, as specified in IO.
"Run of Network" means that Company may place Advertiser's ads on any website or email publication owned and/or produced by Company.
"Receipt"- All correspondences will be deemed received the day it is sent, since they will all be sent via e-mail.
"Scheduled Run"- This is the run of advertisment campaign. This start date will be determined when this IO is executed, and the end day will be left open until agreed otherwise.
3. CONTENT OF ADVERTISEMENTS
When requested by Company, Advertiser shall provide the specific text, URLs and images to be used in the ads, including all Advertiser trademarks and registration notices. Company will exercise commercially reasonable efforts to implement Advertiser's trademark notices and will not contest Advertiser's rights in its trademarks. Advertiser shall respect Company's rights in its trademark. Company will otherwise determine the look and feel, placement and click routines of Advertiser's ad placements used pursuant to this Agreement. Company reserves the right, in its sole discretion, to optimize this campaign by changing positions to better performing positions, if necessary. Advertiser will be notified if such changes are implemented. The Company will track the click-through performance of all advertisements. In order to accomplish this, URLs may be re-directed by the company.
The Company also has the right, in its sole discretion, to refuse to accept any advertisement if it is in breach of any term of this IO, or if its content contains any defamatory, libelous, pornographic or obscene materials.
4. PAYMENT TERMS
- For all campaigns: Advertiser agrees to remit payments to Company as specified on your Insertion Order. Company will bill Advertiser within the first 15 days of each month, and Advertiser agrees to pay each invoice within 15 days of receipt. Late payments shall accrue interest of 1.5% per month until paid in full. All amounts shall be paid promptly and in full without offset. Agencies or other third parties are responsible for payment, whether or not Agency has received payment from Advertiser. Unless Company receives written objection via Federal Express or other traceable courier service within 15 days of the invoice date, the invoice shall be conclusive as to accuracy and shall constitute an account stated. Company reserves the right to cancel this IO upon default in payment according to these terms, at which time all amounts due pursuant to this Agreement shall be immediately due and payable on Company's invoice date. In the event that the company is unable to send out an email ad, a comparable ad will be made available and assigned, space permitting, within thirty days of the original ad run. This make-up date must be confirmed by Advertiser via email or fax prior to the mailing or the make-up ad will not run and a credit will be issued for the missed ad.
- Campaign-specific terms
- For CPA campaigns: Advertiser shall remit payments to Company for each valid acquisition. Unless expressly stated to the contrary in the "Notes" section of the IO, an "acquisition" means a request to use an Advertiser's service through registration and/or download. Where the product type is "Checkbox - pre-checked", membership requests will include an email addresses received via a pre-checked membership signup checkbox. If the product type is "Checkbox" membership requests will include an email addresses received via an unchecked membership signup checkbox. Unless expressly stated in the "Notes" section of the IO, all other membership requests will be linked directly to Advertiser's URL. Company will make reasonable efforts to screen for and eliminate duplicate acquisitions. "Duplicate acquisitions" mean identical membership requests received by Company and transmitted to Advertiser. Advertiser is not required to pay for duplicate acquisitions. It will be the responsibility of the Advertiser to inform the Company of any duplicate acquisitions that are missed by the Company. Advertiser is also not required to pay for any acquisitions associated with email addresses which are invalid (i.e. an address to which Advertiser is unable to successfully deliver a single initial newsletter or other mailing after three (3) attempted electronic mailings).
- For CPC campaigns: Advertiser agrees to pay Company the amount stated on the IO for each click-through. A "click-through" is an email address or IP address which accesses Advertiser's website through any ad placed by Company on any Company website or mailings pursuant to this Agreement. Unless expressly stated otherwise on the "Notes" section of the IO, Advertiser will be invoiced and agrees to remit payments according to click-throughs registered by Company's tracking system.
- For CPM campaigns: Advertiser agrees to pay Company the amount stated on the IO for each thousand ads delivered, whether by mailings, banner advertisements or as otherwise specified on the IO.
- For flat rate campaigns: Advertiser agrees to pay Company the amount stated on the IO for the number of ads to be delivered, whether by mailings, banner advertisements or as otherwise stated on the IO.
5. REPORTS
- For CPA campaigns: Advertiser is responsible for all incoming traffic from campaign or to notify Company of any limitations of bandwidth and network servers capacities. Any lost revenue due to downtime of landing pages will result in an assessment fee of 5 cents per open rate to clients site(s) according to Company tracking system. If client is hosting images, client must also be able to support all image requests. A fee of 5 cents per open rate will be assessed if images cannot be served based off of open rate. Advertiser understands that the removal of the landing page and tracking system, or change in the location shall result in aberrations in tracking. As a result, Advertiser agrees to assume any financial loss or liability incurred by Company should this error intentionally, or unintentionally on the part of the Advertiser, its webmaster, third-party representative or administrator for the Advertiser.
- For CPA campaigns: Unless expressly stated otherwise in the "Notes" section of the IO, Company will make the membership request for each acquisition available to the Advertiser within the same day of receipt by Company and in a form mutually agreed upon by Company and the Advertiser. When submitting monthly payments pursuant to paragraph 4 above, Advertiser shall provide Company with a report detailing all acquisitions received (including email addresses) the number of duplicate and/or invalid subscriber requests, if any, and the reason(s) for deeming each such subscriber requests, if any, invalid.
- For CPC campaigns: Unless expressly stated otherwise in the "Notes" section of the IO, as requested and upon written notice, Company will make available to Advertiser a weekly report for each set of click-throughs generated during the previous week. Upon Company's request, Advertiser shall provide Company with a report detailing all click-throughs received, and the reason(s) for deeming each such click-through, if any, invalid.
6. TERM
The term of the Agreement is as stated in the IO. IO will automatically renew for subsequent periods unless advertiser cancels within 7 days of its end date.
7. TERMINATION
Either party may terminate this Agreement upon the material breach by the other party of any provision of this Agreement, if such breach is not cured within twenty (20) days (five (5) days for nonpayment) after receipt of written notice of such breach from the non-breaching party. Upon termination of this Agreement by Company for any breach by Advertiser, all amounts due and payable under this Agreement by Advertiser to Company shall be immediately due and payable to the Company. Notwithstanding any other provision of this Agreement, the provisions regarding Company limitations on liability, both parties' obligations of confidentiality, and Advertiser's indemnification obligations shall survive the termination of this Agreement.
8. REPRESENTATIONS AND WARRANTIES
Advertiser hereby represents and warrants to Company that (a) the use, reproduction, distribution, or transmission of the ads and all content contained therein provided by Advertiser shall not violate any applicable laws or regulations or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity; and (b) Advertiser has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights granted to Company hereunder.
Company hereby represents and warrants to Advertiser that it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights granted hereunder. COMPANY MAKES NO WARRANTIES AS TO THE LEVEL OF SALES OR PURCHASES THE ADVERTISER CAN EXPECT FROM THE MEMBERSHIPS GENERATED BY COMPANY'S PERFORMANCE OF THIS AGREEMENT OR ANY OTHER BUSINESS RESULTS TO BE OBTAINED BY ADVERTISER FROM THIS AGREEMENT AND ADVERTISER ASSUMES ALL BUSINESS RISKS.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES WHICH ARE PROVIDED "AS IS" BY COMPANY HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH ARE DISCLAIMED BY COMPANY. SPECIFICALLY, ADVERTISER ACKNOWLEDGES AND UNDERSTANDS THAT THE INTERNET IS AN EVOLVING MEANS OF COMMUNICATION AND THAT COMPANY MAY ENCOUNTER TECHNICAL OR OTHER DIFFICULTIES BEYOND ITS CONTROL.
9. LIMITATIONS OF LIABILITY
COMPANY WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, COMPANY'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL AMOUNT OF PAYMENTS MADE BY ADVERTISER TO COMPANY PURSUANT TO THIS AGREEMENT. COMPANY SHALL HAVE NO RESPONSIBILITY FOR FAILURES DUE IN WHOLE OR IN PART TO ACTS OR OMISSIONS, ADVERTISERS OR USERS OR DUE TO FAILURES OF OR DEFECTS IN THIRD PARTY HARDWARE, SOFTWARE OR COMMUNICATIONS SYSTEMS, ACTS OF OTHER THIRD PARTIES AND ACTS OF GOD. THE LIMITATIONS IN PARAGRAPHS 8 AND 9 REPRESENT A VOLUNTARY AND MUTUALLY AGREED ALLOCATION OF RISK AND RESPONSIBILITY IN A REASONABLE MANNER HAVING DUE REGARD TO THE RATES AND PRICES CHARGED BY COMPANY.
10. INDEMNIFICATION
Advertiser (or its agent) will indemnify and hold harmless the Company, it's subsidiaries, affiliates, directors, officers, employees, agents and independent contractors, to the extent that it is based on a claim that the advertisement and or goods/services provided (a) infringe the copyright, patent, trademark or trade secret of another party, (b) makes or shows any defamitory, libelous or other indecent statement, illustrations or pictures, (c) any breach by the Advertiser of its representations, warranties or obligations under this Agreement.
The Advertiser (or its agent) shall indemnify and hold harmless the Company against and from losses, damages, costs, and reasonable attorneys' fees, if any, incurred in defending and/or resolving such suits; provided that (a) the Company is promptly notified in writing of such claim or suit and is given a chance to answer these claims, (b) Company provides information, assistance and authority, at Advertiser 's expense, to enable Advertiser to defend such claim or action, (c) the Advertiser shall have the sole control of the defense and/or settlement thereof, (d) the Company furnishes to the Advertiser, on request, information available to the Company for such defense, and (e) the Company cooperates in any defense and/or settlement thereof as long as the Advertiser pays all of the Company's reasonable out of pocket expenses and attorneys' fees. The Company shall not admit any such claim without prior consent of the Advertiser. The advertiser shall not settle any claim without the written consent of the Company. The Advertiser will not disclose any settlement or permit any third party to do the same without the written consent of the Company.
The Company will indemnify and hold harmless (based on the same terms above) the Advertiser for the Company's failure to include the advertisement as agreed (unless its out of the control of the Company, as explained in this IO).
11. CONFIDENTIALITY
The parties agree for the term of this Agreement and for a period of one year thereafter to keep confidential and not disclose to third parties the business terms related to this Agreement, including but not limited to all information regarding Company's business, such as but not limited to mailing lists, publishing dates, business plans, information relating to the research, development, products, methods of manufacture, customers, finances, marketing, and rates and payments made by Advertiser to Company, unless and until Company makes these generally available to the public, and Advertiser's business plans (ad content, media buy and schedule), unless and until publication thereof.
12. RIGHTS RETAINED
Both parties retain ownership of and all rights in their respective trademarks and service marks.
13. FORCE MAJEURE
Company shall not be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of transportation, communications or computer systems or any other cause beyond the reasonable control of such party; provided that Company gives Advertiser written notice thereof within ten (10) working days of any such event or occurrence and resumes performance as soon as possible.
14. ASSIGNMENT
Neither party may assign this Agreement absent the prior written consent of the other party. Notwithstanding the foregoing, Company has the right to assign this Agreement to any affiliate or other acquirer of all or of substantially all of its equity securities, assets or business relating to the subject matter of this Agreement, or pursuant to any internal re-organization in the sole discretion of Company. Subject to the foregoing, this Agreement will benefit and bind the parties' successors and assigns.
15. INDEPENDENT CONTRACTOR
This Agreement does not constitute and shall not be construed as constituting an agency, partnership, employer/employee relationship or joint venture between Company and Advertiser. Neither party shall have the right to act on behalf of or to contractually obligate or bind the other in any manner whatsoever. Each party acknowledges that all services performed by it or its employees hereunder shall be as an independent contractor.
16. MISCELLANEOUS
This Agreement, and any dispute which may arise hereunder, shall be governed by and subject to the laws of the State of New York. Any disputes arising hereunder shall b e submitted to the courts of the State of New York, County of New York, and both parties agree to the jurisdiction of these courts. Should any part of this Agreement be found to be illegal or otherwise unenforceable, both parties shall continue to be bound under the remaining parts of the Agreement, if the purpose and intent of the Parties can be carried out under the remaining parts of the Agreement. This Agreement shall constitute the entire understanding between the Parties, and supersedes all prior negotiations or understandings (oral or written) between the Parties concerning the subject matter contained herein. Any modifications to this IO shall be in writing and signed by both parties. In the event any of the terms and conditions of this insertion order conflict with any other agreements, written or verbal, then the terms set forth in this insertion order will govern all other agreements.
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