INSERTION ORDER TERMS & CONDITIONS
These terms and conditions (hereinafter referred to as “Agreement”), is entered into by and between DigDev Direct (hereinafter “Company”), and you (hereinafter referred to as “Client”). Company and Client are sometimes referred to herein individually as “Party” and collectively as the “Parties.”
TERMS AND CONDITIONS
1. DEFINITIONS
a. “Ad(s)” or “Creative(s)” means any advertisement provided by Client on behalf of itself or any other clients within its network.
b. “Advertising Materials” or “Marketing Materials” means artwork, copy or active URLs for Ads.
c. “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
d. “Client” means the party executing an Insertion Order with, or receiving services from, the Company.
e. “Insertion Order” (“IO”) is an agreement authorizing Company to create Marketing Campaign(s) (defined below) on behalf of Client. An IO defines the Campaign name, the Client placing the order, products or services to be advertised on behalf of the Client, the size of the advertisements, the IO beginning and end dates, the total cost and discounts to be applied, and reporting requirements. The IO may also include targeting criteria and total volume, dayparting and geographic location or other limitations.
f. “Marketing Campaign(s)” or “Campaign(s)” is a paid advertising offer or a coordinated series of advertisements that focus on one or more brands or products. Campaigns will be comprised of a blend of various types of digital media which may include, but not be limited to, email, banners, video, buttons, text links, clicks, sponsored emails, display ads, programmatic advertising, pop-ups, pop-unders, in app advertising, and other similar methods of digital marketing. Company will select the types of media deployed for each marketing campaign and the percentage of each type of media and ratio of one type of media to another.
g. “Policies” means any all policies of Company, which are subject to change at Company’s discretion.
h. “Personal Data” means information provided to Client by Company that relates to a natural person identified through placed orders.
i. “Law” means any applicable U.S. or European law, statute, rule or regulation.
2. ABILITY TO BIND CLIENT
a. Client hereby authorizes and directs Company to bind Client to the purchase of Campaigns, as outlined in the Insertion Orders agreed to between Client and Company.
b. Client hereby authorizes Company to manage a Campaign, on behalf of Client, by using Client’s account. If Client does not have an account with Company, by entering into this Agreement or any IO with Company, Client authorizes Company to create a Client account consistent with the purpose of this Agreement or IO. All Campaigns are based on the IOs entered into between the Parties.
c. Modifications to the originally submitted IO will not be binding unless approved in writing by the Parties. This includes but is not limited to start/end dates, allocation, and price. Acknowledged receipt of electronic mail (email) documenting the modifications by both Parties will constitute a writing for these purposes.
3. REPORTING
Upon completion of a Campaign, reporting shall be provided by Company to Client.
4. PAYMENT AND PAYMENT LIABILITY
a. Unless otherwise stated to the contrary in the IO, Company will send an invoice to Client after each Campaign fulfillment and/or deployment. Client must remit payment for the invoiced amount within fifteen (15) days or receipt of the invoice, or as otherwise set forth in the IO (the “Initial Due Date”). Client understands and agrees that once the services are performed, there are no returns or refunds. If Client makes payment by credit card, it agrees that it will not “charge back” or otherwise dispute any charge.
b. Late Fees and Payments. A fee of 18% APR will be charged to Client for any and all Late Payments. A Late Payment is any payment not made within thirty (30) days of the Initial Due Date. Company has the right to collect past due amounts from Client, with any legal proceeding to be commenced within the statutory limitation provided by law, of the payment becoming a Late Payment, notwithstanding any restrictions placed by Section 14(b) below. Client agrees to pay for reasonable costs and expenses, including attorney fees, for any efforts made by Company to collect on past due amounts.
5. PARTNER NETWORKS (Applicable If Partner Networks Are Used)
a. “Partner Network” is a third party services provider whom Company may, at its sole discretion, use during any ongoing Campaign for the purposes of fulfilling a campaign objective.
b. Client agrees that Company may purchase from any Partner Network. If Client does not want to purchase from a specific Partner Network, Client must state, in writing, by Partner Network name or Partner Network’s Company-provided Partner Network identification number (“PNID”) that it does not want to purchase from that particular Partner Network.
c. Warranty Disclaimer. CLIENT AGREES THAT COMPANY MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER REGARDING ANY THIRD PARTY PARTNER NETWORK, OTHER THAN AS EXPRESSLY SET FORTH HEREIN. CLIENT FURTHER AGREES AND UNDERSTANDS THAT COMPANY, AS THE TECHNOLOGY PROVIDER, IS NOT RESPONSIBLE FOR THE CONDUCT OF ANY THIRD PARTY PARTNER NETWORKS IN OR THROUGH THE CAMPAIGN.
d. Limitation of Liability.
i. Except as set forth in this Agreement, Company disclaims all liability, whether based in contract, tort, negligence, strict liability or otherwise, for damages of any kind (including without limitation direct, indirect, incidental, consequential, special, punitive or exemplary damages) in any way arising from: (a) any transaction or communication between Client and any third party Partner Network, if any; or (b) the actions or omissions of a third party Partner Network.
ii. Without limiting the foregoing, Client acknowledges and agrees that Company will not be liable for any damages arising from or in connection with any transactions between Client and any third party Partner Network(s), or for any information appearing on Client’s or Partner Networks’ websites.
6. REPRESENTATION AND WARRANTIES
a. Client warrants and agrees that: (i) it enters into this Agreement with the intent to have Company perform Campaigns consistent with the terms of this Agreement, ethical business practices, and all applicable Laws; (ii) Client has the full right, power and authority to enter into this Agreement; (iii) Client will not engage in or facilitate the use of indiscriminate advertising or unsolicited commercial email, or otherwise fail to comply with the California Consumer Protection Act (“CCPA”), CAN-SPAM Act of 2003 or any successor legislation or any other Law relating to marketing, communications, privacy or Personal Data; and (iv) Client has a privacy policy and security breach policy that complies with all Laws, including the CCPA and at a minimum follows industry standards.
7. INDEMNIFICATION
a. Client (the “Indemnitor”) shall indemnify and hold harmless Company, as well as Company’s officers, directors, members, employees and agents (collectively, the “Indemnified Parties”), from and against any and all losses, liabilities, obligations, damages, actions, suits, proceedings, claims, demands, assessments, judgments, costs, penalties, and expenses, including reasonable attorneys’ fees and disbursements, incurred, borne or asserted by a third party against any of the Indemnified Parties in any way relating to, arising out of or resulting from the Indemnitor’s actual or alleged: (i) breach of this Agreement; (ii) intentional or negligent wrongdoing; (iii) violation of the CCPA, the CAN-SPAM Act of 2003, the FTC Act, the Telephone Consumer Protection Act, and all other Laws; and (iv) infringement, violation or misappropriation of any patent right, copyright, trademark right, trade dress right or other intellectual property right. In addition, Client agrees to fully indemnify and hold Company harmless for any claims stemming from Client’s refusal to pay for Campaigns performed by Company consistent with this Agreement or any IO.
b. The Indemnified Parties shall promptly notify the Indemnitor in writing of any such claim or suit within one-hundred and twenty (120) business days that the pleading, demand letter, or other notice is served upon Indemnified Parties, and shall cooperate in a reasonable manner with Indemnitor and at the Indemnitor’s expense, with respect to the defense and disposition of such claim. Indemnitor will have control of the defense or settlement, provided however, that the Indemnitor shall not enter into any settlement that obligates the Indemnified Parties to take any action or incur any expense without such Indemnified Parties’ prior written consent, and further provided that the Indemnified Parties will have the right to be represented by independent counsel of their own choosing, at their own expense, in connection with such claim or suit. If the Indemnitor fails, or is determined incompetent by the Indemnified Parties in its sole discretion, to defend such suit, then the Indemnified Parties, through counsel of their own choice, may, at the expense of the Indemnitor, conduct the defense of such claim.
8. WARRANTY DISCLAIMER
EXCEPT AS SET FORTH IN THIS AGREEMENT, CLIENT AGREES THAT THE SERVICES, THE CAMPAIGN, AND THE COMPANY WEBSITE ARE AVAILABLE ON AN “AS IS” “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND THAT COMPANY MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE SERVICES, THE CAMPAIGN, OR THE COMPANY WEBSITE, OTHER THAN AS EXPRESSLY SET FORTH HEREIN. CLIENT EXPRESSLY AGREES THAT CLIENT’S USE OF THE SERVICES, THE CAMPAIGN GENERATED INFORMATION, AND THE COMPANY WEBSITE IS AT ITS OWN RISK. COMPANY MAKES NO GUARANTEES AS TO THE RESULTS OF ANY CAMPAIGNS. RESULTS VARY BASED ON THE OFFER, THE TARGET AUDIENCE AND OTHER VARIABLES.
9. LIMITATION OF LIABILITY
a. Except as set forth in this Agreement, Company disclaims all liability, whether based in contract, tort, negligence, strict liability or otherwise, for damages of any kind (including without limitation direct, indirect, incidental, consequential, special, punitive or exemplary damages) in any way arising from this Agreement, even if Company is expressly advised of the possibility of such damages.
b. Without limiting the foregoing, Company shall not be liable for damages exceeding the amount paid by Client to Company in the one (1) month period immediately preceding the event that gave rise to the damages.
10. CONFIDENTIALITY, DATA OWNERSHIP, PRIVACY AND LAWS
a. “Confidential Information” shall mean all proprietary information of the Party disclosing the information (“Disclosing Party”) and the Disclosing Party’s affiliated and related companies, including information provided to the Disclosing Party by third parties that the Disclosing Party is obligated to keep confidential, whether provided before or after the Parties execute this Agreement. Unless excluded in writing by the Disclosing Party, the Parties shall assume that any and all information disclosed, that is of a nature that a reasonable person would understand is confidential, is Confidential Information, whether in oral form, machine-readable form, written, digital, electronic or other tangible form, and whether designated as confidential or unmarked. Without limiting the foregoing, Confidential Information includes inventions, product research and development, production data, product designs, specifications, descriptions and labels, discoveries, trade secrets, techniques, models, data, programs, processes, know-how, customer lists and contact information, personal information with respect to employees, customers or others, including but not limited to customer email addresses, client names, marketing plans, drawings, financial information, products, business plans, sales positioning strategies and communication strategies. Each party will protect the Disclosing Party’s Confidential Information in the same manner that it protects its own information of a similar nature. Each Party shall not disclose the Disclosing Party’s Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section.
b. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of the Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the Disclosing Party; (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Disclosing Party; or (v) was communicated by Disclosing Party to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange or as necessary to establish the rights of either party under this Agreement, provided however, that: (a) the Recipient promptly notifies the Disclosing Party of such disclosure requirement; (b) cooperates (at Disclosing Party’s expense) in any lawful effort by Disclosing Party to oppose or limit such disclosure; and (c) discloses only so much of such Confidential Information as, on advice of counsel, it is legally obligated to disclose.
c. Any data processed through the Campaign is owned by Company. Nothing herein shall prohibit Company from using anonymous aggregated data for purposes of system performance, reporting and tuning, and for purposes of marketing, sales, business development, and the benchmarking of its future Campaigns and Company services as compared with other similar services.
d. Client acknowledges and agrees that: (i) all right, title and interest in and to the Company website and any electronic deliverables including Campaign reporting, communications, Marketing Materials and all derivatives thereof, and all intellectual property rights therein (including without limitation any and all patents, copyrights, trade secrets, rights, trademarks, trade names, moral rights and other proprietary rights embodied therein or associated therewith) and all modifications, changes, enhancements or additions thereto (whether initiated by the Client or otherwise) (collectively, “Company IP”), all of which are protected by copyright, trade secret, and other proprietary rights and laws, shall at all times remain the proprietary property of Company, or property of any third party licensors, as applicable; and (ii) Client in no way receives any right or interest in any of the foregoing other than the limited license granted hereunder to use them in accordance herewith. To the extent that Client acquires any rights in the Company IP, Client assigns such rights to Company and waives any moral rights it may have to the Company IP to and in favor of Company. The Company name, logo, and the product names associated with the Campaign and Services are trademarks of Company or third parties, and Client shall not remove or alter any Company trademark or logo.
e. Client shall post on its website its privacy policies and adhere to them. Failure by Client to continue to post a privacy policy or non-adherence to its own privacy policy is grounds for immediate cancellation of this Agreement and all future corresponding Campaigns or IOs.
f. Client will comply with all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
g. Client agrees that monetary damages for breach of confidentiality under this Section may not be adequate and that the Disclosing Party shall be further entitled to seek injunctive relief. Nothing contained in this Agreement shall be interpreted as granting rights by license or otherwise in any Confidential Information disclosed pursuant to this Agreement.
11. TERM AND TERMINATION
a. This Agreement shall become effective on the date the IO is signed (or agreed to electronically through a click-box or otherwise) by the Client or upon Company performing services for the Company, whichever occurs first, and shall remain in effect for one (1) year or until it is terminated in accordance with the IO or is terminated by Company. Notwithstanding anything herein to the contrary, each Party’s rights and obligations under this Agreement, including but not limited to duty of confidentiality, indemnification, non-solicitation and all warranties and representations, shall survive any termination of this Agreement.
b. Any Termination shall not eliminate Client’s obligation to pay for Campaigns generated after the termination of this Agreement but before the end of the notice period. Client understands and agrees that once the services are performed, there are no returns or refunds. If Client makes payment by credit card, it agrees that it will not “charge back” or otherwise dispute any charges.
12. NON-COMPETE, NON-SOLICITATION AND NON-CIRCUMVENT
Client agrees that during the term of this Agreement and for a period of two (2) years after termination it shall not, directly or indirectly, solicit, entice or induce any employee, agent representative, client or professional of Company to terminate or refrain from renewing, continuing or extending such employment or relationship with Company or otherwise alter such employment or relationship with Company or to become an employee, agent, representative or professional advisor of Client or any person competing with Company. Client further agrees not to use reverse engineering or tracing of Company Clients traffic for means to directly solicit Company Clients or other third parties away from Company.
13. PUBLICITY
Client acknowledges and agrees that during and after the term of this Agreement, Company shall have the right to use Client’s name, logo, URL, Website screen captures, and description as well as descriptions and examples of the work and services completed and provided to Client by Company in Company’s marketing, publicity, and promotional activities and materials, including, but not limited to, press releases, marketing collateral, case studies, and in advertisements, without further consent or approval of Client.
14. GENERAL PROVISIONS
a. Force Majeure: Neither Party will be liable for, or will be considered to be in breach of this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs (which shall include, without limitation, acts of God, fire, explosion, pandemic, vandalism, storm or other natural occurrences, any conflicting order, direction, action or request of the United States federal, state or local government or of any regulatory department, agency, commission, court, bureau, corporation or other instrumentality, or of any civil or military authority, national emergencies, insurrections, riots, acts of terrorism, wars, strikes, lockouts, work stoppages or other such labor difficulties), the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of such event. Notwithstanding the foregoing, the Parties’ obligations to one another shall be excused and/or postponed during and only for the duration of the applicable force majeure event and shall resume as soon as practicable after the force majeure event has ended, unless otherwise agreed to by the parties. No force majeure event alleviates Client’s payment obligations.
b. Governing Law; Severability and Survivability: This Agreement shall be treated as though it were executed and performed in the State of Florida and shall be governed by and construed in accordance with the laws of the State of Florida (without regard to conflict of law principles). Client agrees that any legal action or proceeding between Company and Client shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Broward or Palm Beach County, Florida. The parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them. Any cause of action or claim the Client may have with respect to this Agreement must be commenced within six (6) months after the claim or cause of action arises or such claim or cause of action shall be barred. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. If any provision of this Agreement conflicts with any other rule, regulation, or agreement, the terms and conditions of this Agreement shall govern, provided that nothing herein shall permit or require a party to act in contravention of any applicable law, rule or regulation. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions of this Agreement shall remain in full force and effect, provided that neither Party is deprived thereby of the fundamental benefit of its bargain. A Party’s failure to enforce any provision of this Agreement shall neither be deemed a waiver of such provision nor of their right to enforce such provision. Each Party’s rights and obligations under this Agreement, including but not limited to duty of confidentiality, indemnification, non-solicitation and all warranties and representations, shall survive any termination of this Agreement.
c. Relationship of the Parties: Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the Parties. Neither Party shall have authority to contract for or bind the other in any manner whatsoever. Before either Party can issue any press release or statement regarding the Parties relationship, it must be approved by both Parties. Electronic mail (email) will be sufficient approval of any press release statements.
d. Assignment: Client may not assign this Agreement without the written consent of Company. In the event of a merger or consolidation of Company or Client, the surviving or new corporation and any subsidiaries shall take over this Agreement subject to the rights and obligations stated herein.
e. Review of Agreement: All Parties have reviewed this Agreement and have been given sufficient time to have it reviewed by an attorney of their choosing. By signing the IO or otherwise Client accepting the services, the Parties hereby acknowledge that they have read and understood the terms of this Agreement.
f. Scope of Agreement; Entire Agreement: This Agreement sets forth the terms and conditions under which Client authorizes Company to manage Client’s Campaign. This Agreement constitutes the complete and exclusive statement of the agreement between the Parties regarding the products and services defined herein. This Agreement supersedes any other Agreements between the parties that conflict with the terms herein. In the event of any conflict or inconsistency between the terms and provisions of this Agreement and the terms and provisions of the IO, the terms and provisions of this Agreement shall control.
g. ACKNOWLEDGMENT: THIS AGREEMENT SHALL BE CONSTRUED WITHOUT REGARD TO THE PARTY OR PARTIES RESPONSIBLE FOR THE PREPARATION OF THE SAME AND SHALL BE DEEMED AS PREPARED JOINTLY BY THE PARTIES HERETO. ANY AMBIGUITY OR UNCERTAINTY EXISTING HEREIN SHALL NOT BE INTERPRETED OR CONSTRUED AGAINST ANY PARTY HERETO. EACH OF THE PARTIES STATES THAT IT HAS READ EACH OF THE PARAGRAPHS OF THIS AGREEMENT, HAS HAD THE OPPORTUNITY TO AVAIL ITSELF OF LEGAL COUNSEL OF ITS CHOICE DURING NEGOTIATIONS OF THIS AGREEMENT, AND IS FREELY AND VOLUNTARILY ENTERING INTO THIS AGREEMENT UNDER NO DURESS AND THAT IT UNDERSTANDS THE SAME AND UNDERSTANDS THE LEGAL OBLIGATIONS THEREBY CREATED.
15. AGREEMENT TO CONDUCT BUSINESS ELECTRONICALLY
a. Each Party agrees to conduct business electronically with the other.
b. Client acknowledges and agrees that by signing an IO with Company, Client is confirming and acknowledging that Client has accepted this Agreement and all the Policies, terms and conditions as they may be identified herein. Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
