This Agreement governs advertising delivered by the Advertiser to Darriens for distribution through the Darriens Network. Darriens and Advertiser agree as follows:
A. Darriens plans advertising campaigns and places advertising media through the Darriens.
B. Advertiser desires to provide advertising through the Darriens, with Darriens
acting as its agent in accordance with the terms set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants set forth herein, the parties agree as follows:
DEFINITIONS "Advertising Material" means the text, graphics, logos, designs, trademarks and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links, pop-ups, and pop-unders created by an advertiser. "Darriens Network" means the advertising mobile network owned and operated by Darriens. "Order" means an insertion order that is submitted by Advertiser to Darriens and is accepted by Darriens, or an online order submitted by Advertiser via the Internet, and is accepted by Darriens. "User Action" means a completed action by the Advertiser, such as the completion of a lead form or product purchase.
- Section Appointment.
Advertiser hereby appoints Darriens as its agent to place its Advertising Materials through the Darriens according to the specifications in particular Orders issued hereunder.
- Section Orders.
- Orders. From time to time, the parties may negotiate the terms of Orders under which Advertiser will deliver Advertising Material to the Darriens for advertising campaigns. Each Order shall specify the types of Advertising Material to be delivered.
- Adjustments to Orders. The parties may make adjustment to Orders, via revised insertion orders, as that term is generally understood in the industry, when signed by both parties or when accepted via e-mail. These adjustments to Orders shall be effective upon Advertiser’s receipt of Darriens acceptance of the change, and when signed by both parties or when accepted via e-mail.
- Order Cancellation. Cancellation Without Cause. Advertiser may, in its sole discretion, cancel an Order, without cause, by giving notice via e-mail, telephone or fax, to Darriens within 96 hours after the date of the Order. If Advertiser so cancels an Order, all unfulfilled contractual commitments subsequent to the 96-hour notice period shall become null and void, and Advertiser shall pay Darriens only for Advertising Material delivered through the end of the 96-hour notice period. Cancellation With Cause. In addition, each party shall have the right to terminate each Order, and/or this Agreement, upon the other party’s material breach, by giving written notice of termination, which termination shall be effective 7 days after the breaching party’s receipt of such notice unless the breaching party completely cures such material breach within such 7-day period.
- Section Invoicing and Payment.
- Credit Determination. Before Darriens acceptance of the first Order from Advertiser, Darriens shall make a credit determination concerning Advertiser and use that determination in order to establish the level of Orders that it will accept from Advertiser for a campaign.
- Invoices. Darriens may invoice Advertiser on the first day of the contract period set forth in the Order, but payment by Advertiser is not contingent upon receiving Darriens invoice.
- Invoice Disputes. Unless Advertiser objects to Darriens invoice within forty-eight (48) hours, the amount invoiced shall be final and binding. Advertiser may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation. To the extent Advertiser intends to dispute an invoice, Advertiser shall provide a written report to Darriens, within two (2) business days identifying, in detail, the discrepancies, between the invoiced amount and Advertiser’s evidence. Darriens may consider such report, but shall have final authority in determining the correct amount.
- Payment Calculations. One of the following methods shall apply to the calculation of payments, as specified in each Order:
- Cost Per Thousand (CPM). CPM is a fixed rate type of advertising, for which Darriens shall record the per-thousand counts of impressions or traffic based solely on Darriens data, and multiply the count by the dollar rate specified in the Order. The total of said calculation shall be payable to the Publisher as provided herein.
- Cost Per Action (CPA). CPA calculations are based on the action dollar rate specified in the Order. Advertiser shall insert tracking pixels on the confirmation page for each advertisement to be delivered hereunder. Advertiser will provide Darriens with a link to the confirmation page where Darriens can view the pixel for approval prior to initiating the advertising campaign. Payment will be made based on Darriens calculations of the higher of the number of leads from the Darriens or Advertiser statistics based on the tracking pixel. All such records provided by Advertiser shall be the sole property of Advertiser.
- Cost Per Click (CPC). CPC calculations are based on the click dollar rate specified in the Order. Payment will be made based on Darriens calculations of the higher of the number of clicks from the Darriens or Advertiser statistics based on the tracking pixel. All such records provided by Advertiser shall be the sole property of Advertiser.
- User Action. To the extent that payments are based on a User Action, Darriens may, in its sole discretion and if requested by the Advertiser, transfer User Action data that provides the basis for an invoice to Advertiser.
- Non-Viable Leads. Unless otherwise provided in the Order or Campaign Worksheet, no offsets or chargeback’s may be taken for any non-viable or duplicate leads. Darriens shall determine in its sole discretion what constitutes a non-viable lead. Without limiting the breadth of the foregoing, non viable leads shall include, but not be limited to, leads with incomplete contact information (no e-mail address, no phone number, no physical address), leads from consumers under 18 years of age, etc. It is the responsibility of the Advertiser to insure that the IO or Campaign Worksheet accurately reflects the leads sought.
- Payment. Darriens payment terms are Prepayment/Net30. Amounts paid after such date shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). In the event of any failure by Advertiser to make payment, Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Darriens in collecting such amounts. Darriens charges shall be based upon Darriens reports for impression/clicks, or pursuant to such other procedures established in the Insertion Order.
- Section Advertising Materials.
- Delivery of Advertising Materials. Advertiser will provide to Darriens all Advertising Materials in accordance with Darriens then-current policies. If and to the extent that the delivered Advertising Materials do not conform to Darriens current format specifications, Advertiser shall be responsible for providing Darriens with materials that meet Darriens technical specifications. In the event that Advertiser does not provide Darriens with compliant materials, Darriens reserves the right to make technical modifications as necessary to confirm the Advertising Materials with such specifications. Darriens hereby grants to advertiser a nonexclusive, nontransferable, royalty-free worldwide license to use any and all such technical modifications to the Advertising Materials created by Darriens (the "Darriens Work Product").
- License. For the Term of this Agreement and the purposes stated hereunder, Advertiser hereby grants to Darriens a non-exclusive, royalty-free, worldwide license to reproduce, distribute, create derivative works of, publicly perform, publicly display and digitally perform the Advertising Materials and its constituent parts, including trademarks, service marks, logos or other commercial product or service designations (collectively "Marks") contained in the Advertising Materials. Advertiser also grants to Darriens the limited right to use any and all images of the Advertising Materials and Advertiser’s Marks for the purposes of its marketing, promotion and content directories or indexes, and in electronic or printed advertising, publicity, press releases, newsletters and mailings about Darriens website or Darriens. Darriens may make a reasonable number of archival or back-up copies of the Advertising Materials. Except with respect to the Advertising Materials, title to and ownership of all intellectual property rights relating to the Darriens website and the Darriens Work Product shall remain with Darriens.
- Recording of Service Counts. Darriens shall have the sole responsibility for calculation of statistics and User Actions, including impressions and click-through numbers. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes.
- Unacceptable Advertising Materials. Darriens reserves the absolute right to refuse in its sole discretion to accept Advertising. The following are examples of Advertising Material that Darriens will not accept: material that infringes the rights of others (including but not limited to copyright and other intellectual property rights) or which promotes copyright piracy (i.e., unauthorized MP3s, roms, 'warez', emulators, or cracks, etc.) material that contains pornography, adult content, sexual or erotic material material with gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm material that promotes any type of hate-mongering (i.e., racial, political, ethnic, religious, genderbased, sexuality-based or personal, etc.) material that promotes any type of illegal substance or activity (i.e., how to build a bomb, hacking, 'phreaking', etc.) material that contains any content violating Federal privacy laws, including the Children’s Online Privacy Protection Act. Any material discovered to be a potential malware threat or source of malware.
- Section Representations and Warranties. Advertiser represents and warrants to Darriens that: It is solely responsible for any legal liability arising out of or relating to the Advertising Material to which users can link through the Darriens Neither the Advertising Material, as provided to Darriens, nor any website to which such Advertising Materials shall link will (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any applicable law, statute, ordinance or regulations, including without limitation the laws and regulations governing export control; (c) be or contain material which is defamatory or trade libelous; (d) be or contain material which is lewd, pornographic or obscene; (e) violate any laws regarding unfair competition, antidiscrimination or false advertising; (f) promote violence or hate speech; or (g) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines; (h) Any material discovered to be a potential malware threat or source of malware; and It is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply; and it will conduct its business in compliance with all applicable laws, rules and regulations; and It has full legal power and authority under its organizational documents (1) to enter into this Agreement; and (2) to grant to Darriens the rights, permissions, privileges and licenses granted herein, without reservation or restriction; and (3) to perform the obligations contained herein; and The execution of this Agreement and the performance of its obligations by Advertiser will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which Advertiser is a party or subject.
- Section Term and Termination.
- Term. Subject to the early termination rights of either party herein, the term of this Agreement shall be 1 year from the date first written above; and it shall renew automatically for subsequent oneyear periods unless either party notifies the other at least 30 days before the end of the then-Term that it does not wish to renew the Agreement.
- Termination Without Cause. Notwithstanding Section 6.A above, either party may terminate this Agreement at anytime for any or no reason whatsoever, upon 30 days written notice to the other party. Notice may be provided via e-mail or any other public means and will be effective 30 days after its transmission.
- Termination With Cause. Notwithstanding Sections 6.A and B above, either party shall also have the right to terminate this Agreement because of an Order cancellation in accordance with Section 1.3.B.
- Consequences of Termination. Notwithstanding the termination of this Agreement, or any Order issued hereunder, each party shall be liable to the other for any amounts due under an Order up to the date of the termination. Additionally, the provisions of Sections 5, 7, 8 and 9 shall survive the termination of this Agreement or any Order issued hereunder. Upon termination of this Agreement or any Order issued hereunder Darriens shall remove the Advertising Materials from the Darriens and return them to Advertiser with reasonable promptness.
- Section Limitation of Liability. In the event that Darriens does not deliver the number of page views stated in the Order in the time period allotted by the Order, the sole liability of Darriens to Advertiser shall be limited to the obligation, upon Darriens final determination, to either (a) continue to deliver the advertisement until it garners the stated number of page views (b) credit the undelivered page views to a future advertising run, or (c) refund the amount paid on the invoice on a pro rated basis with respect to the undelivered page views. In no event will Darriens be liable for any special, indirect, incidental or consequential damages whether such damages are alleged in tort, contract or indemnity or for loss of profits, interrupted communications, lost business or lost data arising out of or in connection with this Agreement, even if Darriens has been advised of (or knows or should know of) the possibility of such damages.
- Section 8. Indemnification. Advertiser agrees to defend, indemnify and hold harmless Darriens and its directors, officers, agents, employees an affiliates for any and all losses, costs, liabilities or expenses (including without limitation reasonable attorneys’ and expert witnesses’ fees) incurred or arising from any breach of its representations or warranties in Section 5, any technical damage caused by the Advertising Materials or any portion thereof as provided, any claim arising from the Advertising Materials, Advertiser’s website or the sale or license of Advertiser’s goods or services or any other act, omission or misrepresentation by Advertiser. Darriens may participate in the defense at its option and expense. The Advertiser also agrees to indemnify Darriens for any legal fees incurred by Darriens, acting reasonably, in investigating or enforcing its rights under this agreement.
- Section General.
- Inconsistency with Order. In the event of any inconsistency between an Order and this Agreement, the terms of the Order shall prevail.
- Assignment. Any assignment, transfer or delegation by Advertiser of its rights or duties hereunder will be governed by this Agreement, subject to the parties’ termination rights hereunder.
- No Prior Agreements. This Agreement, together with all fully executed Orders, contains every obligation and understanding between the parties regarding the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements and understandings, if any, regarding the subject matter hereof.
- Severability, Rights Cumulative. 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.
- Force Majeure. Darriens shall not be held to be in breach of this Agreement by reason of any failure or delay in its performance hereunder if such failure is due to causes beyond its reasonable control, including but not limited to, acts of the other party, act of God, delays in transportation, inability beyond its reasonable control to obtain necessary labor or materials, or events such as fires, floods, earthquakes, storms, war, act of public enemy, civil commotion and the like or by any law, rule, regulation, order or other action by any public authority. In the event of interruption of display or distribution of the Advertisement, Darriens sole obligation shall be to restore service as soon as reasonably possible.
- Advertising Agency. In the event that an advertising agency is executing this Agreement on behalf of Advertiser, such party executing this Agreement as agent shall be jointly and severally liable for all covenants and amounts owing hereunder. The Parties represent that they fully acknowledge and agree to the terms of this Agreement, and that the following individuals are authorized to sign on their behalf.
- Authorization: Accepting this document contractually binds Darriens and the Advertiser.