Sidebar Terms and Conditions
Agreement
This agreement shall govern the participation in the “Adzovia Sidebar Program”, referred to as ‘Program’. The term ‘Advertiser’ shall refer to any individual or entity who accepts the terms and conditions of this agreement by submitting the Program registration. By participating in Program, Advertiser will be deemed to have agreed to these terms and conditions. Program is offered to Advertiser by Universal Crown Pertello Corporation, a California Corporation, referred to as ‘Agent’. Adzovia is a brand of Universal Crown Pertello Corporation.
Term
The term of this Agreement will begin upon execution and will continue until completed or terminated in accordance with the provisions set forth in Section 1.
1. Termination
Either Party may terminate this Agreement at any time for any reason upon thirty (30) days prior written notice to the other Party hereto.
Agent may terminate or suspend, at its sole discretion, Advertiser’s access to the Advertiser Account or Advertiser’s participation in Program at any time, if Advertiser (i) submits Prohibited Content or (ii) violates applicable law. In addition, Agent may, in its sole discretion, terminate Advertiser’s access to Program and close the Advertiser Account(s) if there is no activity in such Advertiser Account(s) for a continuous period of sixty (60) days or more. Agent may pause a campaign at any time if the Parties encounter technical difficulties with Advertiser’s use of or integration with Program.
Either Party may terminate this Agreement effective immediately, if the other Party is in material breach of any obligation, representation, or warranty hereunder and fails to cure that material breach (if capable of cure) within fifteen (15) days after receiving written notice of the material breach from the non-breaching Party stating its intent to terminate.
Either Party may terminate this Agreement effective immediately upon written notice if: (i) the other Party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other Party and such petition is not removed or resolved within thirty (30) days; (iii) the other Party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other Party discontinues its business; (v) a receiver is appointed over all or substantially all of the other Party’s assets or business; or (vi) the other Party is dissolved or liquidated.
Upon termination of this Agreement or Advertiser’s Account, (i) each Party will immediately cease using any Confidential Information provided by the other Party, (ii) Advertiser will immediately cease using the Advertiser Account and Program, and (iii) Advertiser shall pay all amounts outstanding under this Agreement to Agent within thirty (30) days of such termination. Upon termination, any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening.
All agreed payment must be made in full prior to the commencement of the advertising campaign. Failure to make on-time payments may result in this Agreement being terminated. Payment agreement is more fully described in Section 7.
2. Content
Advertiser will submit to Agent all graphics and desired layouts for composite rendering. Prior to production of Program, Advertiser will receive a for approval submittal. This submittal must be approved by Advertiser prior to campaign execution.
Except as expressly set forth in this Agreement, as between Advertiser and Agent, Agent retains all right, title and interest in and to the Agent Materials, Agent Sites, and the Intellectual Property of Agent, including without limitation all copyrights and other intellectual property rights therein. As between Advertiser and Agent, Advertiser retains all right, title and interest in and to the Advertiser Materials, the Advertiser Sites, Advertiser Marks, and the Intellectual Property of Advertiser, including without limitation all copyrights and other intellectual property rights therein.
In the course of an Engagement, a Consumer may provide Consumer Data. Advertiser and Agent will jointly own Consumer Data. Advertiser exclusively owns any data provided by a Consumer to Advertiser subsequent to the Engagement. Advertiser may not sell the Consumer Data and shall only use Consumer Data for the sole purpose for which it was collected and for no other purpose. Agent will have the right to “seed” the Consumer Data provided to Advertiser with fictitious data (which Advertiser will not be charged for) in order to assure compliance with this Section.
Agent and Advertiser will jointly own the Campaign Data available to such Party and shall have the right to use the Campaign Data for internal purposes. If either party discloses such data, such data will be disclosed on an aggregated and anonymous basis.
Advertiser shall own all Advertiser-Provided Data; provided, however, that Advertiser on behalf of itself or other parties, as applicable, hereby grants Agent a perpetual, fully-paid right and license to (i) maintain and use the Advertiser-Provided Data to support the Advertiser’s campaigns through Program and provide and improve Program in general and (ii) disclose the Advertiser-Provided Data on an anonymous and aggregated basis in case studies, graphs, and other Program promotional and informational materials.
3. Confidentiality
“Confidential Information” means (i) technical innovations, know-how, business practices, consumer acquisition practices, ideas, inventions, processes, financial records, prices, trade secrets, applications, source code, reporting, data, and Intellectual Property; (ii) any and all information that is disclosed by either Party to the other Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, which if disclosed in writing or tangible form is marked as “Confidential,” or with some similar designation, or if disclosed orally or by inspection or observation, is identified as being proprietary and/or confidential at the time of disclosure, (iii) by the nature of the circumstances surrounding the disclosure should reasonably be treated as proprietary and/or confidential, or (iv) any information which is or reasonably should be considered to be proprietary and/or confidential.
Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving Party; (ii) is rightfully known by the receiving Party at the time of disclosure without an obligation of confidentiality, as evidenced by the receiving Party’s tangible (including written or electronic) records; (iii) is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information, as evidenced by the receiving Party’s tangible (including written or electronic) records; or (iv) the receiving Party rightfully obtains from a third party, who does not have a known obligation of confidentiality, without restriction on its use or disclosure.
Neither Party may use the other Party’s Confidential Information, except as necessary for the performance of this Agreement nor may either Party disclose Confidential Information of the other Party to any third party or individual, except to those of its employees or subcontractors that need to know such Confidential Information for the purpose of performing this Agreement; provided, that each such employee or subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth herein. Each Party must use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, but in no event less than the efforts that Party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party in order that the disclosing Party may act to prevent or restrict the ordered disclosure; (ii) on a confidential basis to its legal or financial advisors; or (iii) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party. Upon the written request of the disclosing Party, all copies of Confidential Information shall be promptly returned or destroyed by the receiving Party. Notwithstanding the foregoing, a receiving Party may retain in the offices of its legal advisor a single archival copy of any written or photographic Confidential Information provided by the other Party under this Agreement, which copy shall only be used by the receiving Party and its legal advisors in connection with the review of its obligations under this Agreement.
Except as necessary to perform its obligations herein, neither Party may publicize this Agreement nor the relationship between the Parties established herein to any third party, including without limitation issuing a press release, unless it has obtained the prior written approval of the other Party hereto.
4. Limited License
Advertiser hereby grants to Agent a non-exclusive, worldwide, royalty-free license to reproduce, distribute, display, edit, modify, enhance and otherwise use the Advertisements (including any trademarks therein) in connection with Agent’s provision of the Service, including, without limitation, copying and distributing Advertisements to Consumers, on applications and websites, and to third party service providers.
All submitted content is accepted and published on Advertiser representation that Advertiser is authorized and has the appropriate permission to license such content to Agent Program. Advertiser hereby agrees to issue, a non-exclusive, limited license, to Agent for the use of any logo, trademark, or other branding material that Advertiser has included or uploaded. In no event, will Agent tolerate the submission of infringing material. To the extent possible under U.S. Law, Agent is not liable for any copyright, trademark, trade secret, or other proprietary infringement arising from any materials (including advertisements) posted, shared, uploaded or otherwise transmitted on Agent sites or used in Program (including advertisements) posted, shared, uploaded or otherwise transmitted on Agent web sites.
5. Representations and Warranties
The relationship of Agent and Advertiser established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to constitute a partnership, joint venture, agency, or employment relationship between the Parties. Neither Party shall have any right to obligate or bind the other Party hereto in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third parties.
Each of the Parties represents and warrants that (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreements to which it is a party; (iii) its performance hereunder will comply with all applicable laws, rules, and regulations relating to online privacy or otherwise; (iv) this Agreement constitutes a legal, valid and binding obligation of it when executed and delivered; and (v) it has and will have the necessary rights, title and interest to grant the licenses granted herein.
Agent represents and warrants to Advertiser that (i) the Agent Materials and Agent Sites do not, and will not, infringe, violate, or misappropriate any intellectual property rights of any third party or contain Prohibited Content; and (ii) for lead-based Engagements where prior express written consent is required pursuant to the Telephone Consumer Protection Act of 1991 (“TCPA”) for Advertiser to make autodialed and/or prerecorded telemarketing calls (or texts) to Consumers is required, such consent language shall comply in all material respects with applicable provisions of the TCPA; provided, that Advertiser (a) provides Agent with the accurate name to be inserted into the consent language and accurate information with respect to its call and other communication practices and (b) contacts the Consumers in accordance with the consents obtained.
Agent delivers duration and not performance. Advertiser is responsible for making sure what each placement option includes and does not include. Agent does not make any guarantees as to the results of any advertisements or that any such advertisements will be error-free. Agent will provide Advertiser with estimated usage statistics as matter of courtesy.
Advertiser represents and warrants to Agent that (i) the Advertiser Materials and Advertiser Sites do not, and will not, infringe, violate, or misappropriate any intellectual property rights or contain Prohibited Content; (ii) as applicable, it is authorized to act on behalf of its client advertisers when using Program or otherwise engaging in activities permitted under this Agreement; (iii) Advertiser has supplied the accurate name to be inserted into any TCPA prior express written consent language, if applicable; and (iv) Advertiser, and its clients, shall comply with applicable law, including privacy law, in its use and storage of user data transferred to Advertiser by Agent or its agents, including Consumer Data. With respect to any Engagements that include the creation, collection, retention and use of protected health information as defined at 45 C.F.R. §160.103 (“PHI”), Advertiser acknowledges and agrees that Agent does not store PHI and Advertiser, not Agent, shall provide a Consumer or any other entity, as required by applicable laws, with access to such consumer’s PHI and personally identifiable data upon request or as otherwise required by applicable laws.
Advertiser does hereby represent and warrant to Agent (1) that Advertiser is (or Advertiser is an authorized representative) of the seller of the goods and services being advertised; (2) Advertiser is authorized to enter into this Agreement; and (3) Advertiser is the holder of all proprietary rights, trademarks, copyrights, and patents related to the goods/services stated in the order form.
6. Disclaimers
Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold the other Party and its directors, officers, shareholders, employees, affiliates, and agents (the “Indemnified Party”) harmless from and against any liabilities, damages, losses, or expenses (including reasonable attorneys’ fees) arising out of any claim, demand, action, or proceeding initiated by a third party that is based upon, arises out of, or relates to the alleged or actual breach of Indemnifying Party’s representations and warranties set forth in Section 7; provided, however, that Indemnified Party: (i) promptly notifies Indemnifying Party in writing of the claim, except that any failure to provide this notice promptly only relieves Indemnifying Party of its responsibility pursuant to this Section to the extent its defense is materially prejudiced by the delay; (ii) grants Indemnifying Party sole control of the defense and/or settlement of the claim, provided Indemnifying Party uses legal counsel reasonably acceptable to Indemnified Party; and (iii) provides Indemnifying Party, at Indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim. Indemnifying Party shall not settle any claim in a manner that adversely affects the rights of the Indemnified Party without Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Indemnified Party may participate in and observe the proceedings at its own cost and expense with legal counsel of its own choosing.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE WITH RESPECT TO ITS PRODUCTS AND/OR SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, PROGRAM AND PROGRAM SITES ARE PROVIDED “AS IS” AND AT ADVERTISER’S OPTION AND RISK. AGENT MAKES NO WARRANTY OR GUARANTEE OF ANY KIND THAT (I) PROGRAM OR PROGRAM SITES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, AND SECURE, OR OPERATE WITHOUT ERROR, OR (II) THE SERVICES PROVIDED HEREUNDER WILL PROVIDE SPECIFIC VOLUMES OF TRAFFIC, RESULTS, ACCURATE CONSUMER INFORMATION, CONVERSIONS OR SALES OBJECTIVES OR ANY LEVEL OF PROFIT OR BUSINESS. ADVERTISER UNDERSTANDS AND ACCEPTS THAT CONSUMERS AND CONSUMER DATA HAVE NOT BEEN SCREENED OR VALIDATED BY AGENT AND ARE NOT GUARANTEED TO BE ACCURATE OR ERROR-FREE AND AGENT IS NOT LIABLE FOR SUCH INACCURACIES.
LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING LOST DATA, BUSINESS, REVENUE, OR ANTICIPATED PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE APPLICABLE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. AGENT SHALL HAVE NO LIABILITY FOR THE ACTS OR OMISSIONS OF THIRD PARTIES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE LESSER OF THE FEES PAYABLE BY ADVERTISER TO AGENT UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE MILLION DOLLARS ($1,000,000). THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT, AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
7. Pricing
Agent reserves the right to update or change the published rates without notice to Advertiser. Rates listed in Agent Rate Sheet do not include any applicable taxes.
Agent will invoice Advertiser for all media and third-party costs sufficiently in advance of the due date to permit payment by Advertiser to Agent in order to take advantage of all available cash discounts or rebates.
All invoices shall be rendered on or about the first day of each month and will be payable by the tenth day of the month.
Pricing will be negotiated and agreed to in writing. Good faith in business notwithstanding, all orally expressed agreements must be documented in writing and incorporated into the agreement in order to be valid or enforceable.
8. Taxes
Advertiser is responsible for all applicable taxes, duties or other charges, including sales or use taxes, imposed by any federal, state, or local governmental entity on the Service furnished by Agent under this Agreement, except for taxes based on Agent’s net income, gross revenue, or employment obligations. If Agent is obligated by applicable law or regulation to collect and remit any taxes relating to the Service, then Agent may bill the Advertiser for the appropriate amount.
In the event that any federal, state, or local taxes are imposed on the creation of advertising or on the sale of advertising, such taxes shall be assumed and paid by Advertiser.
9. Assignment
Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may freely assign any of its rights or obligations under this Agreement without consent: (i) to its affiliates (provided that any such assignment will not relieve Advertiser of its obligations hereunder) or (ii) in connection with any merger, consolidation, reorganization, or sale of all or substantially all of its assets related to this Agreement, by operation of law or otherwise, or similar transaction. This Agreement inures to the benefit of and is binding upon the Parties’ permitted assignees, transferees and successors.
10. Force Majeure
Except for Advertiser’s payment obligations under this Agreement, neither Party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including labor disputes, strikes, lockouts, carrier gateway provider service failures, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
11. Severability
All provisions of this Agreement are held enforceable and all provisions of this contract shall remain in full force and effect.
If any provision of this Agreement is held unenforceable, then such provision shall be modified to reflect the Parties’ intention. All remaining provisions of this Contract shall remain in full force and effect.
If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement.
12. Non-Waiver
The failure by one party to require performance of any provision shall not affect that party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Contract constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
Except as otherwise set forth herein, all amendments to this Agreement must be in writing and executed by both Parties hereto.
A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived. The failure by either Party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
13. Method of Signature
For purposes of this Agreement, a Party may agree and/or sign by any of the following actions as determined by Agent (i) Agent posting online terms; (ii) Advertiser clicking through an Agent click through or similar agreement; (iii) by signing a Work Order or other similar document incorporating this Agreement by reference; (iv) and/or a written instrument signed by an authorized representative of each relevant party.
14. Validity of Copies
This Agreement may be executed in counterparts and transmitted electronically. Each good legible copy shall have the same effect as an original and be deemed as an original in its manner of use.
15. Jurisdiction
This agreement shall be interpreted under the laws of the State of California. Any litigation under this agreement shall be resolved in the trial courts of the State of California, under California Law, as a matter of first choice.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The Parties agree that the federal and state courts located in Sacramento County, California will have exclusive jurisdiction and venue under this Agreement, and the Parties hereby agree to submit to such jurisdiction exclusively.
The Parties hereunder also agree that in the event of breach, should a dispute ensue that the Parties cannot resolve by good faith discussion and earnest endeavor between themselves, that they must first attempt, then, if said dispute is escalated by either party for resolution by lawsuit or other external means, the prevailing party shall be entitled to costs of suit or other resolution and reasonable attorney’s fees, if applicable.
16. Entire Agreement
This Agreement and any exhibits, addendums and schedules attached hereto set forth the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements or understandings (whether oral or written) between Advertiser and Agent regarding the subject matter. All exhibits and schedules attached to this Agreement are incorporated herein. The Parties mutually agree that this Agreement shall supersede any End User License Agreement (“EULA”) or general terms and conditions which may be found on any website owned, operated or hosted by either Party, or in any boilerplate Advertiser agreement such as may be appended to an Advertiser purchase order or insertion order. In no event shall the provisions of any insertion order or any associated documentation used by Advertiser constitute a binding agreement between the Parties or serve to modify the provisions of this Agreement, regardless of any failure of Agent to object to any insertion order or associated documentation.
This Agreement contains the entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior negotiations, agreements and understandings with respect thereto. This Agreement may only be amended by a written document duly executed by all parties.
By paying for Program, Advertiser acknowledges that you have read, understood, and agrees to be bound by the provisions of this Advertiser Agreement. Advertiser represents and warrants that the person executing on behalf of either party has been duly authorized to execute this Agreement.
17. Notices
All notices under the terms of this Agreement must be presented in writing and sent by United States registered or certified mail, nationally recognized express courier, facsimile transmission, email, to the following addresses:
Adzovia Sidebar Program
Universal Crown Pertello Corporation
P.O. Box 580284
Elk Grove, CA 95758-0005
Phone: +1 800 690-9931
Facsimile: +1 800 383-2709