Ad.net, Inc. Advertiser Terms and Conditions
These Advertiser Terms and Conditions, along with any applicable insertion order(s) that you (“you” or “your” or “Advertiser” means you, your company and agents, as applicable) enter into offline or offline that reference these Terms and Conditions (each an “Insertion Order”) (collectively, the “Agreement”) are entered into by and between you and Ad.net, Inc. (“Ad.net”). This Agreement governs your use of Ad.net’s Advertising Products (the “Service”). You and Ad.net agree as follows:
1. The Advertising Products.
Ad.net places advertisements on behalf of Advertiser across digital media properties, including third-party publisher websites, mobile platforms, email channels, and other media outlets. Advertiser appoints Ad.net as its limited agent for purposes of: purchasing advertising inventory; placing advertisements; managing media relationships; executing media buys consistent with agreed campaign objectives.
2. The Service.
Ad.net will act as an advertising agency by providing advertisement counseling and related services to Advertiser. Such services include, without limitation, strategic advertising consultation; development of media plans; writing, composing, editing, and designing advertising creatives; selection and procurement of media inventory; negotiation and placement of advertisements in digital media; and ongoing campaign management and optimization.
3. License.
You hereby grant to Ad.net, all rights (including but not limited to, all trade names, trademarks, service marks and copyrights) in your advertisement needed to operate the Service (including but not limited to any rights needed to copy, use, store, publicly display, modify, distribute, perform and transmit your advertisement).
4. Representations and Warranties.
You represent and warrant that (a) you are at least 18 years of age; (b) you have the full right, power and authority to enter into this Agreement; (c) by entering into this Agreement you are not breaching any duty or obligation to any third party; (d) the person executing the Agreement is your duly authorized representative and authorized to bind you to the terms of the Agreement; (e) any service or product advertised in your advertisement, complies with applicable law and does not contain any content that infringes any intellectual property, contract or tort right of any third party or material or link that is abusive, obscene, defamatory, harassing, grossly offensive, vulgar, threatening, misleading, false or malicious and does not reflect poorly on or tarnish the reputation or goodwill of Ad.net; (f) your advertisement does not contain any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment; and (g) you will not engage in, or cause others to engage in, spamming, or improper malicious, fraudulent, automated (as determined by Ad.net) clicking, impressions, inquiries, conversions or other actions. Breach of any of the above representations and warranties may result in immediate termination of this Agreement or suspension of your use of the Service without notice, as well as legal penalties.
5. Payment.
5.1. Campaign Budget.
You agree to fund advertising expenditures in accordance with the applicable Insertion Order (“Campaign Budget”). Campaign Budget amounts are used to purchase advertising media inventory from third-party publishers and media providers selected by Ad.net on your behalf. The parties may agree that Campaign Budget allocations are determined on a cost-per-click (CPC), cost-per-impression (CPM), cost-per-acquisition (CPA), or on the basis of cost plus a fee paid to Ad.net. Such pricing methodology is a mechanism for calculating advertising expenditures and Ad.net’s service compensation and does not alter Ad.net’s role as your limited advertising agency.
5.2. Pricing.
Your payment is based solely on Ad.net’s measurements unless otherwise agreed to between the parties in writing. Ad.net will submit an invoice to you at the email you provided in the Insertion Order. You agree to pay the amount without offset or deduction, within 30 days of the invoice date. Late payments bear interest at the rate of 1.5% per month or the highest rate permitted by law, if less. You agree to reimburse Ad.net for all collection costs associated with your account. In Ad.net’s sole discretion, it may provide you with a refund. Refunds will only be provided in the form of a credit to be used to offset a future payment. All payments pursuant to this Agreement shall be in United States Dollars.
5.3. Media Spend.
Ad.net’s compensation for its advertising counseling, creative services, media planning, optimization, and campaign management services shall consist of: (a) a performance-based service fee embedded within the agreed pricing model; or (b) a separately stated management fee; or (c) a combination thereof. To the extent Campaign Budget exceeds amounts paid to third-party publishers, the difference represents Ad.net’s earned service fee. Amounts paid by Advertiser are received by Ad.net in its capacity as advertising agency for the purpose of: (i) purchasing media inventory; (ii) compensating third-party publishers; and (iii) retaining agreed service fees. Ad.net may apply funds across publisher sources in its professional discretion consistent with Advertiser’s campaign objectives.
6. Disclaimer; Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, AD.NET DISCLAIMS ALL WARRANTIES, IMPLIED OR EXPRESS, INCLUDING BUT NOT LIMITED TO, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AD.NET DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES AD.NET MAKE ANY WARRANTY AS TO THE PERFORMANCE OF ANY RESULTS THAT MAY BE OBTAINED BY YOUR USE OF THE SERVICE OR ANY ADVERTISING PRODUCT. IN NO EVENT SHALL AD.NET BE LIABLE TO YOU FOR ANY LOST PROFITS, LOST REVENUE, INTEREST, GOOD WILL, LOST DATA, ANY WEBSITE OR NETWORK DOWNTIME, COST OF PROCURING SUBSTITUTE SERVICES OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER ARISING, THAT ARE RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION TO NEGLIGENCE) OR ANY LEGAL THEORY EVEN IF AD.NET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN THE EVENT OF ANY BREACH OF THIS AGREEMENT BY AD.NET, AD.NET’S LIABILITY TO YOU WILL NOT EXCEED THE TOTAL AMOUNT YOU HAVE PAID AD.NET PURSUANT TO THIS AGREEMENT.
7. Indemnification.
You agree to indemnify, hold harmless and defend Ad.net and its directors, officers, employees and agents from any liability, loss, damages, claims, or causes of action, including reasonable attorneys fees arising from or relating to: (a) any allegation that you engaged in conduct, if true would breach your warranties and/or obligations under this Agreement; and (b) any third party claims relating to any service or product advertised in your advertisement.
8. Cancellation.
You may cancel the Service by providing Ad.net with 72 hours written notice of cancellation, including without limitation, by email. Ad.net will use its best efforts to cancel the Service within 72 hours after receipt of your written notice to cancel the Service. Ad.net, in its sole discretion, may cancel the Service at any time. Sections 2, 3, 4, 5, 6, 7, 8, 9 and 10 will survive cancellation of this Agreement.
9. Assignment; Severability; Modification.
You may not assign or delegate any or all of your rights, obligations, and duties under the Agreement without the prior written consent of Ad.net, which may be withheld in Ad.net’s sole discretion. If any clause or provision in the Agreement is determined to be invalid or unenforceable, it will not affect the validity of any other clause or provision the Agreement, which will remain in full force and effect. Ad.net reserves the right to modify the terms of the Agreement at time, without notice to you. If you continue to use the Service after any such changes, your continued use will constitute your consent to such modifications. You will notify Ad.net immediately to any change to the information provided in the Insertion Order.
10. Miscellaneous.
ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, AN ADVERTISING PRODUCT OR THE SERVICE SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL AND STATE COURT OF LOS ANGELES COUNTY CALIFORNIA, USA, AND YOU CONSENT TO PERSONAL JURISDICTION IN SAID COURTS. THIS AGREEMENT IS GOVERNED BY CALIFORNIA LAW, EXCEPT FOR ITS CONFLICTS OF LAW PRINCIPLES AND SHOULD BE CONSTRUED AS IF BOTH PARTIES JOINTLY WROTE IT. The prevailing party in any action arising out of or relating to this Agreement or the Service has the right to collect from the other party its costs and attorneys’ fees incurred in said action. Any rights not expressly granted herein are reserved by Ad.net. You hereby grant to Ad.net the right to use your trademarks, service marks and other intellectual property for Ad.net’s promotional purposes, marketing materials and similar uses. The Agreement constitutes the entire agreement between the parties hereto relating to this specific subject matter thereof and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and Ad.net. The term and condition of this Agreement are confidential. Each party shall not disclose the terms and conditions of this Agreement except as necessary to comply with a government rule, law or regulation. The failure by Ad.net to exercise or enforce any of the terms or conditions of this Agreement shall not constitute a waiver of Ad.net’s rights hereunder to enforce each and every term and condition of this Agreement. You acknowledge that the Service, including, without limitation, all trade names, trademarks, service marks, content, text images, software, media and other material contained therein, is a work or collective work, proprietary to Ad.net, protected under copyright, trademark and other intellectual property laws.