Advertiser Terms & Conditions
I. INSERTION ORDERS AND INVENTORY AVAILABILITY
a. From time to time, parties may negotiate insertion orders (“IO”s) under which 8Towns Marketing will deliver advertisements ("Ad(s)") provided by Advertiser to the GreaterMystic.com site (the “Site”) for the benefit of the Advertiser (or their Client, in the event that the IO is secured by an Advertiser). At Advertisers discretion, an IO may either be submitted by Advertiser to 8Towns Marketing or be submitted by 8Towns Marketing , signed by the Advertiser and returned to 8Towns Marketing . In either case, an IO will be binding only if accepted as provided in Section I(b) below. Each IO shall specify: (a) the type(s) and amount(s) of inventory to be delivered (e.g. — ad size, dimensions, impressions, duration, etc.) (the “Deliverables”); (b) the price(s) for such Deliverables; (c)the maximum amount of money to be spent pursuant to the IO (if applicable), (d) the start and end dates of the campaign, and (e) the identity of and contact information for any third party ad server ("3rdParty Ad Server"), if applicable. Other items that may be included are, but are not limited to: reporting requirements such as impressions or other performance criteria; any special Ad delivery scheduling and/or Ad placement requirements; and specifications concerning ownership of data collected. b. 8Towns Marketing will make commercially reasonable efforts to notify Advertiser within two (2) business days of receipt of an IO signed by Advertiser if the specified inventory is not available. Acceptance of the IO and these Terms and Conditions will be made upon the earlier of (a) written (which, unless otherwise specified, for purposes of these Terms and Conditions shall include paper, fax, or e-mail communication) approval of the IO by 8Towns Marketing and Advertiser; or (b) the display of the first Ad impression by 8Towns Marketing , unless otherwise agreed upon in the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless signed by both parties. c. Revisions to accepted IOs must be made in writing and acknowledged by the other party in writing.
II. AD PLACEMENT AND POSITIONING
a. 8Towns Marketing must comply with the IO, including all Ad placement restrictions, requirements to create a reasonably balanced delivery schedule, and provide within the scope of the IO, an Ad to the Site specified on the IO when such Site is called up by an Internet user. Any exceptions must be approved by Advertiser in writing. b. 8Towns Marketing will use commercially reasonable efforts to provide Advertiser at least ten (10) business days, prior notification of any material changes to the Site that would change the target audience or significantly affect the size or placement of the Ad specified in the affected IO. Should such a modification occur with or without notice, as Advertiser’s sole remedy for change or notice, Advertiser may immediately cancel the remainder of the IO without penalty within the 10-day notice period. If 8Towns Marketing has failed to provide such notification, Advertiser may cancel the remainder of the IO within thirty (30) days of such modification, and in such case shall not be charged for any affected Ads delivered after such modification. c. 8Towns Marketing will submit or otherwise make electronically accessible to Advertiser within two (2) business days of acceptance of an IO final technical specifications, as agreed upon by the parties. Changes to the specifications of the already-purchased Ads after that two (2) business day period will allow Advertiser to suspend (without impacting the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either (i) send revised artwork, copy, or active URLs (“Advertising Materials”); (ii)request that 8Towns Marketing resize the Ad at 8Towns Marketing ’s cost, and with final creative approval of Advertiser, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the IO for the affected Ad without penalty. d. Ad delivery shall comply with editorial adjacencies guidelines stated on the IO. As Advertiser’s sole remedy for a violation of the foregoing sentence: (i) Ads that run in violation of such editorial adjacencies guidelines, if 8Towns Marketing is notified of such violation within thirty (30) days of the violation, shall be non-billable; and (ii) after Advertiser notifies 8Towns Marketing that specific Ads are in violation of such editorial adjacencies guidelines, 8Towns Marketing will make commercially reasonable efforts to correct within twenty-four (24) hours such violation. In the event that such correction materially and adversely impacts such IO, the parties will negotiate in good faith mutually agreed changes to such IO to address such impacts. In the event that the parties cannot reach agreement on such changes within five (5) business days from the implementation of such correction, Advertiser or 8Towns Marketing may, upon the conclusion of such five (5) business day period, immediately cancel such IO, without penalty.
III. PAYMENT AND PAYMENT LIABILITY
The initial invoice will be sent prior to the placement of the Advertiser's creative on the PixelAd Grid. Invoices are to be sent to: Advertiser’s billing address as set forth in the IO and must include information reasonably specified by Advertiser such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices pursuant to the IO must be received within one hundred eighty (180) days of delivery of all Deliverables. Failure by 8Towns Marketing to send such invoice or make such request shall be considered a waiver of right to payment for delivery of Ads for which no invoice was sent. 8Towns Marketing should provide invoices accompanied by proof of performance for the invoiced period, which may include access to online or electronic reporting as addressed in this document, subject to the notice and cure provisions of Section IV. 8Towns Marketing should invoice Advertiser for the services provided on a calendar month basis with the net cost (i.e., the cost after subtracting Advertiser commission) based on actual delivery or based on prorated distribution of delivery over the term of the IO, as specified in the applicable IO.
b. Payment Date
Advertiser will make payment with thirty (30) days from receipt of invoice, or as otherwise stated in a payment schedule set forth in the IO. 8Towns Marketing may notify Advertiser that it has not received payment in such thirty-day period and whether it intends to seek payment directly from Advertiser pursuant to Section IIIc, and may do so five (5) business days after providing such notice.
c. Payment Liability
Unless otherwise set forth by Advertiser on the IO, 8Towns Marketing agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Advertiser to Agency for Ads placed in accordance with the IO. For sums not cleared to Advertiser, 8Towns Marketing agrees to hold Advertiser solely liable. 8Towns Marketing understands that Agency is Advertiser’s disclosed principal and Agency, as agent, has no obligations relating to such payments, either joint or several, except as specifically set forth in this Section III(c) and Section X(c). Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis. Agency’s credit is established on a client-by-client basis. If Advertiser proceeds have not cleared for the IO, other Advertisers from the representing Agency shall not be prohibited from advertising on the Site due to such non-clearance if such other Advertiser’s credit is not in question. Agency will make available to 8Towns Marketing upon request written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Advertiser is its agent and is authorized to act on its behalf in connection with the IO and these Terms and Conditions. In addition, upon the request of 8Towns Marketing , Advertiser will confirm whether Advertiser has paid to Advertiser in advance funds sufficient to make payments pursuant to the IO. If Agency’s or Advertiser’s credit is or becomes impaired, 8Towns Marketing may require payment in advance.
a. 8Towns Marketing must, within two (2) business days of the start date on the IO, provide confirmation to Advertiser, either electronically or in writing, stating whether the components of the IO have begun delivery. b. 8Towns Marketing shall make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified in the IO. Reports must be broken out by day and summarized by creative execution, content area (Ad placement), and other variables defined in the IO, for example, impressions, keywords, and/or clicks. Once 8Towns Marketing has provided the online or electronic report, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to receipt of 8Towns Marketing ’s invoice for such period. c. In the event that 8Towns Marketing fails to deliver an accurate and complete report by the time specified, Advertiser may initiate makegood discussions pursuant to Section VI below. In the event that 8Towns Marketing learns that it has delivered an incomplete or inaccurate report, or no report at all, 8Towns Marketing must cure such failure within five (5) business days. Failure to cure may result in nonpayment for all activity for which data are incomplete or missing, until 8Towns Marketing delivers reasonable evidence of performance and such report must be delivered within thirty (30) days of 8Towns Marketing learning of such failure or absent such knowledge, within 180 days of delivery of all Deliverables.
V. CANCELLATION AND TERMINATION
a. At any time prior to the serving of the first impression of the IO, Advertiser may cancel the IO with thirty (30) days prior written notice, without penalty. For clarity and by way of example, if Advertiser cancels the IO fifteen (15) days prior to the serving of the first impression, Advertiser will only be responsible for the first fifteen (15) days of the IO. b. Upon the serving of the first impression of the IO, Advertiser may cancel the IO for any reason, without penalty, by providing 8Towns Marketing written notice of cancellation which will be effective after the later of: (i) 30 days after serving the first impression of the IO; or (ii) 14 days after providing 8Towns Marketing with such written notice. c. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder that is not cured within ten (10) days after written notice thereof from the nonbreaching party, except as otherwise stated in this Agreement with regard to specific breaches. Additionally, if Advertiser or Agency commit a violation of the same Policy (as defined below), where such Policy had been provided by 8Towns Marketing to Advertiser, on three (3) separate occasions after having received timely notice of each such breach, even if such breach has been cured by Advertiser or Agency, then 8Towns Marketing may terminate the IO associated with such breach upon written notice. If Advertiser or Agency do not cure a violation of a Policy within the applicable ten (10) day cure period after written notice, where such Policy had been provided by 8Towns Marketing to Advertiser, then 8Towns Marketing may terminate the IO associated with such breach upon written notice. d. Short rates will apply to cancelled buys to the degree statedon the IO.
a. 8Towns Marketing shall monitor delivery of the Ads, and shall notify Advertiser either electronically or in writing as soon as possible (and no later than two weeks before IO end date unless the length of the campaign is less than two weeks) if 8Towns Marketing believes that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for makegood consistent with these Terms and Conditions. b. In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any Ad (placement or creative unit), Advertiser and 8Towns Marketing will make an effort to agree upon the conditions of a makegood flight either in the IO or at the time of the shortfall. If no makegood can be agreed upon, Advertiser may execute a credit equal to the value of the under-delivered portion of the contract IO for which it was charged. In the event that Advertiser or Agency has made a cash pre-payment to 8Towns Marketing , specifically for the campaign IO for which under-delivery applies, then if Advertiser and/or Agency is reasonably current on all amounts owed to 8Towns Marketing under any other agreement for such Advertiser, Advertiser may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event shall 8Towns Marketing provide a makegood or extend any Ad beyond the period set forth in the IO without prior written consent of Advertiser.
VII. BONUS IMPRESSIONS
a. Where Advertiser utilizes a 3rd Party Ad Server, 8Towns Marketing will not bonus more than 10% above the Deliverables specified in the IO without prior written consent from Advertiser. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad served activity. Advertiser will not be charged by 8Towns Marketing for any additional Ads above any level guaranteed or capped in the IO. If a 3rd Party Ad Server is being used and Advertiser notifies 8Towns Marketing that the guaranteed or capped levels stated in the IO have been reached, 8Towns Marketing will use commercially reasonable efforts to suspend delivery and, within 48 hours, may either 1) serve any additional Ads itself or 2) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser after such notice has been provided and associated with over delivery by more than 10% above such guaranteed or capped levels. b. Where Advertiser does not utilize a 3rd Party Ad Server, 8Towns Marketing may bonus as many ad units as 8Towns Marketing chooses unless otherwise indicated on the IO. Advertiser will not be charged by 8Towns Marketing for any additional advertising units above any level guaranteed in the IO.
VIII. FORCE MAJEURE
a. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. In the event that 8Towns Marketing suffers such a delay or default, 8Towns Marketing shall make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Advertiser, 8Towns Marketing shall allow Advertiser a pro rata reduction in the space, time and/or program charges hereunder in the amount of money assigned to the space, time and/or program charges at time of purchase. In addition, Advertiser shall have the benefit of the same discounts that would have been earned had there been no default or delay. b. If Advertiser's ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Advertiser's reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Advertiser shall make every reasonable effort to make payments on a timely basis to 8Towns Marketing , but any delays caused by such condition shall be excused for the duration of such condition. Subject to the foregoing, such excuse for delay shall not in any way relieve Advertiser from any of its obligations as to the amount of money that would havebeen due and paid without such condition. c. To the extent that a force majeure has continued for five (5) business days, 8Towns Marketing or Advertiser has the right to cancel the remainder of the IO without penalty.
IX. AD MATERIALS
a. It is Advertiser’s obligation to submit Advertising Materials in accordance with 8Towns Marketing ’s then existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with 8Towns Marketing ’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and material due dates)(collectively "Policies") in accordance with Section II(c). 8Towns Marketing 's sole remedy for a breach of this provision is set forth in paragraphs (b and c) below, Section V(c), and Section X(b). If Advertising Materials are late, Advertiser is still responsible for the media purchased pursuant to IO. b. 8Towns Marketing reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials or the site to which the Ad is linked do not comply with its Policies, or that in 8Towns Marketing ’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, 8Towns Marketing reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon 8Towns Marketing or any of its Affiliates (as defined below), provided that if 8Towns Marketing has reviewed and approved such Ads prior to their use on the Site, 8Towns Marketing will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Advertiser. c. If Advertising Materials provided by Advertiser are damaged, not to 8Towns Marketing ’s specifications, or otherwise unacceptable, 8Towns Marketing will use commercially reasonable efforts to notify Advertiser within two business days of its receipt of such Advertising Materials. d. 8Towns Marketing will not edit or modify the submitted Ads in any way, including, but without limitation, resizing the Ad, without Advertiser approval. 8Towns Marketing shall use all such Ads in strict compliance with these Terms and Conditions and any written instructions provided by Advertiser. e.When applicable, Third Party Ad Server tags shall be implemented so that they are functional in all aspects. f. 8Towns Marketing , on one hand, and Advertiser and Agency, on the other, will not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of these Terms and Conditions or an IO without the other’s prior written approval.
a. 8Towns Marketing agrees to defend, indemnify and hold harmless Advertiser and Agency, their Affiliates (as defined below) and their respective directors, officers, employees and agents from any and all damages, liabilities, costs andexpenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred as a result of a Third Party (as defined below) claim, judgment or proceeding relating to or arising out of 8Towns Marketing ’s breach of Section XII, 8Towns Marketing ’s display or delivery of any Ad in breach of these Terms and Conditions or the terms of an IO, or that materials provided by 8Towns Marketing (and not by Advertiser or Agency) for an Ad violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action, except to the extent (1) that such claim, judgment or proceeding resulted from such materials fulfilling Advertiser's or Agency's unique specifications provided that 8Towns Marketing did not know or should not have reasonably known that such specifications would give rise to the Loss or(2) that such materials are provided to Advertiser or Agency for review and the Advertiser or Agency knew or should have reasonably known from the visual or sonic expression of the Advertisement, while 8Towns Marketing did not know or should not have reasonably known, that such material violated any law, regulations or other judicial or administrative action, violate the right of a Third Party or are defamatory or obscene. An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A "ThirdParty" means an entity other than the parties to this Agreement, their respective Affiliates, and each of the irrespective directors, officers, employees and agents. b. Advertiser agrees to defend, indemnify and hold harmless 8Towns Marketing its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Advertiser’s breach of Section XII, violation of Policies (to the extent the applicable terms of such Policies have been provided to Advertiser at least ten (10) days prior to the violation giving rise to the claim), or the content or subject matter of any Ad or Advertising Materials to the extent used by 8Towns Marketing in accordance with these Terms and Conditions or an IO, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action. c. Advertiser represents and warrants that it has the authority as agent to Advertiser to bind Advertiser to these Terms and Conditions and each IO. Advertiser agrees to defend, indemnify and hold harmless 8Towns Marketing its Affiliates and the irrespective directors, officers, employees and agents from any and all Losses incurred as a result of Advertiser’s alleged breach of the foregoing sentence. d. If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim; and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party. e. Notwithstanding the foregoing, in the event that any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Section X, Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable. A "RelatedParty" is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.
XI. LIMITATION OF LIABILITY
Excluding the parties obligations under Section X or damages that result from a breach of Section XII or intentional misconduct by the parties, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages.
XII. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS
a. 8Towns Marketing represents and warrants that 8Towns Marketing has all necessary permits, licenses, and clearances to sell the inventory represented in the IO subject to the terms and conditions of this agreement, including any applicable Policies. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in their Ads and Advertising Materials. b. Neither Advertiser nor Agency may resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without 8Towns Marketing ’s prior written approval will be null and void. All terms and provisions of these Terms and Conditions and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns. c. These Terms and Conditions and the related IO constitute the entire agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document. d. In the event of any inconsistency between the terms of an IO and these Terms and Conditions, the terms of the IO shall prevail. All IOs shall be governed by the laws of the State of Connecticut. 8Towns Marketing and Advertiser (on behalf of itself and not Advertiser) agree that any claims, legal proceeding or litigation arising in connection with the IO (including these Terms and Conditions) will be brought solelyin Connecticut, and the parties consent to the jurisdiction of such courts. No modification of these Terms and Conditions or any IO shall be binding unlessin 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. e. Any notice required to be delivered hereunder shall be delivered three (3) days after deposit in U.S. mail, return receipt requested, one (1) business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to 8Towns Marketing and Advertiser shall be sent to the contact as noted in the IO with a copy to the Legal Department. All notices to Advertiser shall be sent to the address specified on the IO. f. Sections III, VI, X, XI, XII, and XIV shall survive termination or expiration of this Agreement and Section IV shall survive for thirty (30) days after the termination or expiration of this Agreement. In addition, each party shall return or destroy the other party’s Confidential Information and remove Advertising Materials and Ad tags.