Opera Mediaworks Performance ADVERTISER ONLINE AGREEMENT
ACCEPTANCE OF TERMS THROUGH PARTICIPATION
By participating in this Advertising program ("Program") or by clicking "I agree" to this Agreement, Advertiser and any network associated with it, (together "Advertiser") signifies Advertiser's agreement to these terms and conditions. If Advertiser does not agree to this Agreement it should not use this site and not click "I agree". Please check this Agreement periodically for changes as the owner of this site ("Company") reserves the right to revise this Agreement, the Program or any particular advertising campaign, and the most recent version of each supersedes all prior versions and Advertiser's continued use of this site following the posting of any changes to the Agreement constitutes acceptance of such changes. Company may choose to send to Advertiser a notice of any changes in this Agreement, the Program or an advertising campaign, but the failure of Company to do so does not, in any way, relieve Advertiser of the need to check this site each time prior to participating in a particular advertising campaign to determine if Company has instituted any changes in the terms of this Agreement or the manner in which the Program shall be administered.
If an agency or broker ("Agency") is signing on behalf of another party who is receiving the benefit of the Services, e.g. an advertiser, then all obligations and liabilities hereunder shall be jointly and severally attributable to both, and the defined term Advertiser shall include both the agency and the advertiser. This Agreement incorporates by reference any insertion order ("IO") addenda, signed by both parties, for an advertising campaign ("Campaign"). Services rendered within a Campaign and set forth on an IO may include, but are not limited to generation of Actions, Leads, Clicks, Calls, Downloads, Impressions or any other type of service to be provided by Company.
When used in this Agreement, the term "you" shall refer to Advertiser, its parent, subsidiaries, owners, officers, directors or managers and employees. Company and Advertiser agree to be legally bound as follows:
- Company Obligations.
- Payable Unit. Any act of Company, or by a party acting at the direction of, with the permission of, or on behalf of Company, which results in submission of any information to Advertiser, shall be considered a payable unit hereunder ("Payable Unit"). For the purposes of this Agreement, Payable Units include, but are not limited to, the following: Actions which will be billed on a cost per Action ("CPA") basis; Leads which will be billed on a cost per lead ("CPL") basis; Clicks which will be billed on a cost per Click ("CPC") basis; Calls that will be billed on a cost per Call ("CPCall") basis; Downloads which will be billed on a cost per Download ("CPD") basis; Impressions which will be billed on a cost per thousand Impressions ("CPM") basis.
- Definitions. "Action" and "Lead" shall be defined in an IO. "Impressions" shall be defined as the number of times an advertisement is served to, and received by, a visitor as determined in Company's sole discretion. "Click" shall be defined as each time, as recorded by Company's server and/or in Company's sole discretion, a person clicks on a Campaign advertisement, as identified by cookie or IP address, regardless of its source, including but not limited to, interstitials, downloadable applications and other advertising means. "Call" shall be defined as each time, as recorded by Company's server and/or in Company's sole discretion, a person calls in response to a Campaign Advertisement regardless of its source including but not limited to interstitials, downloadable applications and other advertising means. "Download" shall be defined as each time, as recorded by Company's server and/or in Company's sole discretion, a person downloads a mobile application in response to a Campaign Advertisement regardless of its source including but not limited to interstitials, downloadable applications and other advertising means. "Email List" or "List" shall be defined as a list of email addresses of persons. "United States" shall be defined as the 50 states and territories including Midway Islands, Puerto Rico, American Samoa, Virgin Islands, Micronesia, Marshall Islands, Northern Mariana Islands, Palau, and Guam. "United Kingdom" shall be defined as England, Scotland, Ireland and Wales.
- Transfer of Data. Company shall transmit data ("Report") to Advertiser as set forth in the IO or at Advertiser's request. Either party disputing Payable Units in good faith based on a Report shall provide prior written notice via email with Company confirmation of receipt (without confirmation of receipt, notice has not been provided), and/or via overnight or messenger with receipt-verifiable means to the Company address ("Written Notice") outlining the dispute in detail within 2 business days of receipt of Report. Advertiser shall pay for all Payable Units which are not in good faith dispute. Failure to provide timely Written Notice waives all right to dispute such. Upon receipt of timely Written Notice, the receiving party shall conduct a good faith review and issue a response. In the case of disagreement after such response, the Company's resolution of, and decision on, the matter shall be binding and Advertiser waives all right to dispute such.
- Services. Company shall perform advertising, consulting, email list provision, and other services at its discretion ("Services") as defined in an IO. The manner and means by which Company chooses to perform the Services are in Company's sole discretion and control, including, but not limited to, incentives and use of third party publisher and affiliate networks. Advertiser understands and agrees that Company has direct relationships with third parties who may display advertising in accordance with their own terms, conditions and programs, and that Company can only use reasonable business efforts to affect downstream parties with whom it has a direct contractual relationship.
- Advertiser's Obligations.
- Campaign Testing. Within 1 business day after implementation of a Campaign, Advertiser shall perform a complete trial test and/or review of its Campaign offer as set forth in this section ("Campaign Test"). Advertiser shall verify that the Campaign complies in every way as agreed and expected by Advertiser, from start to finish, including but not limited to, advertiser's site (whether hosted by Company or otherwise) ("Advertiser Site"), that all restrictions, pixel placement and all Criteria (as defined in an IO) and conditions set forth in the IO are properly functioning, that proper creatives and information are displayed and every other expectation of Advertiser regarding the IO is satisfied. If Advertiser discovers any problems after the Campaign Test, Advertiser shall provide Written Notice to Company within 1 business day of the Campaign Test. If there are any changes in the Campaign, Advertiser shall have 1 business day to re-perform a Campaign Test and provide Written Notice within 1 business day to alert Company of any problems. If Advertiser fails to provide timely, Written Notice to Company, all Payable Units shall be considered valid. In Company's sole discretion, the Payable Units generated as a result of improper pixel placement shall be equal to the highest "click to conversion" rate during any 24 hour period during the Campaign, or if an actual "click to conversion" rate is unavailable, then a reasonable "click to conversion" rate as determine by Company in its sole discretion shall be applied. Advertiser waives all rights to dispute Payable Units on any basis covered in the section.
- Advertiser Reports. Advertiser shall provide Reports via Written Notification in real time or by no later than 3pm EST on every Tuesday (in the event of national holidays, the next business day) including at least the following data: all Payable Units, Action, Lead, Click, Impressions or other received; dates and times such were received; and payable/rejected and conversion rate for such. Either party disputing Payable Units in good faith based on a Report shall provide Written Notice outlining in the basis for dispute in detail. Advertiser shall pay for all Payable Units which are not in good faith dispute. Upon receipt of timely Written Notice, the receiving party shall conduct a good faith review and issue a response. In the case of disagreement after such response, the Company's resolution of, and decision on, the matter shall be binding and Advertiser waives all right to dispute such.
- Notification of Downtime and Advertiser System Changes. If Advertiser is hosting Advertiser's System, Advertiser must provide Written Notice of any downtime, including a description of the problem and a reasonable estimate as to when the problem will be corrected, no less than 1 hour after any Advertiser System down time or technical problems. Advertiser shall send Written Notice at least 4 business days prior to any changes to the Campaign, the Advertiser System or any other changes that may affect the Services, data, Leads, Actions, Clicks, Calls, Downloands or Impressions, IO, Campaign or any Payable Unit or their generation, "click to conversion" rate or billing. If Advertiser fails to provide timely Written Notice for downtime or changes, in Company's sole discretion and interpretation, the Payable Units generated during such time shall be equal to the highest "click to conversion" rate during any 24 hour period during the Campaign, or if such is unavailable, then a reasonable "click to conversion" rate as determine by Company in its sole discretion; and Advertiser waives all rights to dispute Payable Units on any basis covered in the section.
- Payments. Advertiser shall pay the Initial Set up Fee, for all Payable Units, and all additional fees indicated on an IO; all payments are non-refundable. Late payments are subject to the greater of 18% APR or the highest rate permitted by state law. If Advertiser becomes delinquent and such account is sent to a collections agency, attorney or becomes the subject of litigation, Advertiser is liable for the payments due, interest charges at the set forth rate and the costs and expenses of collections and/or actual attorney fees, and all of the preceding during pre and post judgment through any appeal. If Advertiser chooses to pay via credit card, a convenience fee shall be charged. As indicated in an IO, a "variable" cost type campaign is one in which Company notifies Advertiser that it may increase or decrease volume advertising and/or increase or decrease rates paid to Company for each Payable Unit. Company will obtain Advertiser's consent prior to instituting a variation and if Advertiser does not consent, Company may terminate such IO immediately. In the event of a change in volume or price, there may be up to 7 business days' delay to effect such change and Advertiser shall remain responsible for payment of all Payable Units as per prior volume or pricing during transition. Company does not make any guarantee regarding such increases or decreases in rates or volume. Any increase or decrease shall apply to all advertising in a Campaign, are accepted in the Company's sole discretion, and may be delayed or rejected due to concerns including, but not limited to, regarding outstanding amounts due or credit risk of Advertiser.
- Payment Procedures. Performance of Services hereunder is contingent upon Company's receipt of a satisfactory credit check for Advertiser. In Company's sole discretion, Company may require prepayment of any Campaign or may terminate this Agreement or any IO and it shall be considered void with neither party having any obligation to perform. If Advertiser has not prepaid, Company shall forward invoices to Advertiser each week, every two weeks, or monthly at Company's discretion. Advertiser shall pay all invoices as set forth in each IO; if nothing is set forth, all payments shall be due within 7 days of the date of the invoice. As Payable Units become due upon rendering, even if no invoice is received, all amounts are still due; if there is any question as to a missing invoice or the amount due, Advertiser must provide timely Written Notice to Company within 2 business days after such discovery was, or should have been, made; failure to provide timely Written Notices waives all right to dispute such invoice, charges or Payable Units thereafter. Failure to completely pay amounts due (not subject to a good faith dispute for which Written Notice is expressly permitted herein) in a timely manner, on two or more occasions, is material breach by Advertiser of this Agreement and failure to make any payment in a timely manner may result in suspension and/or termination of the Campaign, IO and/or this Agreement at Company's sole discretion. More restrictive notice deadlines notwithstanding, Advertiser must provide Written Notice of any disputed charge or invoice within 2 business days after receipt; failure to do so in a timely manner waives all rights to dispute such invoice, charges or Payable Units. Failure of any third party, including but not limited to an Advertiser, to pay Agency does not affect any obligations of the Agency under this Agreement.
- Audit. Both parties' data related to Payable Units is subject to audit by the other party, or a third party on its behalf subject to a confidentiality agreement, no more than once per year, at the auditing party's expense, during normal business hours and with at least 5 business days prior Written Notice; all results of such audit shall be Confidential Information of the audited party and used only for the purposes of this Agreement.
- Force Majeure. Either party shall be excused from performing hereunder to the extent that it is prevented from performing as a result of any act or event which occurs and is beyond its reasonable control, including, without limitation, acts of God, war, weather, utility or telecommunications outages, unrest or riot, strikes any action of a governmental entity; etc. provided that the party experiencing the force majeure provides the other with prompt written notice thereof and uses reasonable efforts to remedy effects of such matter.
- Warranties. Each party represents and warrants that (i) it has the requisite corporate authority to enter into and perform this Agreement, (ii) this Agreement constitutes a legally binding obligation, enforceable in accordance with its terms and the signatory below has the authorization to bind itself and any party it represents or is receiving the benefit of any Campaign, and (iii) it shall use reasonable business efforts to comply with all laws and regulations. Advertiser represents and warrants that (a) Advertiser Content, Advertiser's Site and disclosure of any Confidential Information by it hereunder does not violate any third parties' rights (or it has obtained an express license permitting compliance with all terms and obligations of this Agreement), including but not limited to copyrights, patent, trade secret or trademark rights; does not violate libel, slander or defamation laws; are not false or deceptive; (b) Advertiser will not take any action which results in false or under-report Payable Units; and (c) Advertiser Content and Advertiser System are free from any viruses, Trojan horses, trap doors, back doors, worms, cancel bots or any other technical means intended to destroy, alter, monitor or interfere with a user's computer or other technical device without his or her express knowledge and consent.
- Intellectual Property. As long as Company receives all amounts due hereunder, Company grants to Advertiser, and Agency (as applicable) for the exclusive benefit of Campaign Advertiser, a non-exclusive, non-transferable license for Advertiser to use any Services work product and resulting data solely in compliance with the law and in and for the purposes of the applicable Campaign. Company retains all ownership and rights to all data as a result of, used in, collected through, or related to any Campaign regardless of which party or for whose benefit it was collected and such data is Confidential Information of Company. All rights not set forth in this license are reserved by Company. Advertiser acknowledges that the Services and their structure, organization, methods, concepts and techniques constitute valuable trade secrets of Company. Company and its licensors retain and reserve exclusive ownership of all worldwide copyrights, trade marks, service marks, trade secrets, patent rights, moral rights, property rights and all other industrial rights in the Services, data and Services work product, including but not limited to any derivative works, modifications, customizations, updates, or enhancements. All rights in and to the Services and Services work product not expressly granted to Advertiser in this Agreement are reserved by Company and its licensors.
- Confidentiality. While performing under this Agreement, both parties may be exposed to confidential and trade secret information of the other or third parties' businesses ("Confidential Information"). Company Confidential Information includes, without limitation, this Agreement, Company pricing, Company's or third parties' business plans, partnership/affiliation arrangements, clients, financing arrangements, technical data, marketing plans, software, source codes, programming techniques, ranking techniques, sources of services and goods, costs, profits, methods of obtaining new clients, competitive analyzes, personnel information, and financial data in any form disclosed. Advertiser Confidential Information includes any written information marked confidential. Confidential Information does not include (i) information which either party shows is or becomes generally known by the public other than as a result of a disclosure by it, (ii) information which either party can show was known by it prior to performance of Services. A receiving party agrees not to disclose, in any form, oral, electronic or paper, disclosing party's Confidential Information by any means to any third party, and to use such only for the purposes of this Agreement, unless otherwise authorized in a signed writing, during the Term of this Agreement and for a period of three (3) years thereafter. A receiving party agrees to immediately return, or destroy all disclosing party's Confidential Information upon end of performance of Services or termination of this Agreement. The preceding notwithstanding, Advertiser understands and agrees that the Company has proprietary relationships with third-party publishers and affiliates which provide advertising inventory to Company, and Advertiser agrees not to solicit, induce, recruit, or encourage, directly or indirectly, any third party with whom Company has a business relationship, e.g., a publisher which provides advertising inventory to the Company, for purposes of entering into a direct or indirect business relationship for products or services offered by, or competitive with products or services offer by, Company (e.g. the direct sale of advertising to Advertiser), during the term of this Agreement and for a 1 year period following termination of this Agreement.
- Liability Limit and Warranty Waiver. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER, ADVERTISER, AGENCY, CONSUMERS OR ANY THIRD PARTY (INCLUDING ANY PARTY RECEIVING THE BENEFIT OF A CAMPAIGN) UNDER THESE TERMS, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ADVERTISER, AGENCY AND ANY PARTY RECEIVING THE BENEFIT OF A CAMPAIGN ACKNOWLEDGE THAT THEY HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS STATEMENTS IN THIS AGREEMENT. IN NO EVENT SHALL COMPANY'S LIABILITY TO ADVERTISER, AGENCY, ANY PARTY RECEIVING THE BENEFIT OF A CAMPAIGN, CONSUMERS OR ANY OTHER THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR SERVICES, DATA, LIST AND CAMPAIGNS, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, AND EXPRESSLY INCLUSIVE OF ANY AND ALL COMPANY INDEMNIFICATION OBLIGATIONS HEREUNDER, EXCEED THE AMOUNT RECEIVED FROM ADVERTISER UNDER THIS AGREEMENT DURING THE THREE MONTH PERIOD PRIOR TO THE DATE OF WRITTEN NOTICE OF THE CLAIM OR DISPUTE. COMPANY EXPRESSLY DOES NOT WARRANT NOR GUARANTEE ANY RESULTS OF SERVICES, DATA, LIST AND CAMPAIGNS WHATSOEVER, INCLUDING BUT NOT LIMITED TO: ITS ABILITY TO CONTROL THE PACE OF ANY CAMPAIGN OR AT WHICH ACTIONS, LEADS, CLICKS, CALLS, DOWNLOADS, IMPRESSIONS, DATA, OR PAYABLE UNITS ARE GENERATED OR DIRECTED; ITS ABILITY TO SUPPLY A MINIMUM OR BELOW A MAXIMUM NUMBER OF ACTIONS, LEADS, CLICKS, CALLS, DOWNLOADS, IMPRESSIONS, DATA, OR PAYABLE UNITS; THAT INCREASING THE PRICE OF ACTIONS, LEADS, CLICKS, CALLS, DOWNLOADS, IMPRESSIONS, DATA OR PAYABLE UNITS IN A VARIABLE COST CAMPAIGN WILL RESULT IN INCREASED VOLUME OR ANYTHING ELSE; THAT ACTIONS, LEADS, CLICKS, IMPRESSIONS, DATA OR PAYABLE UNITS COMPLY WITH IO CRITERIA; THAT ANY METHOD OR MEANS OF PERFORMING SERVICES, INCLUDING INCENTIVES, WILL NOT BE USED; THAT ANY PARTICULAR CUSTOMERS ARE TARGETED EXCEPT IF EXPRESSLY SET FORTH IN THE APPLICABLE IO; THAT SERVICES, DATA, LIST AND/OR CAMPAIGNS WILL RESULT IN "QUALITY", "VALID", OR "CORRECT" DATA, ACTIONS, LEADS, IMPRESSIONS, SALES OR OTHERWISE; AND THAT SERVICES, DATA, ACTIONS, LEADS, IMPRESSIONS, LIST AND/OR CAMPAIGNS WILL RESULT IN ANY CONVERSION RATE OR ANY FINANCIAL OUTCOME. EXCEPT AS SET FORTH IN SECTION ENTITLED "WARRANTIES", ALL SERVICES, DATA, LIST AND CAMPAIGNS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. ADVERTISER RECOGNIZES THAT THE "AS IS" CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH COMPANY WOULD NOT HAVE AGREED TO ENTER INTO THIS AGREEMENT. EXCEPT AS SET FORTH IN SECTION ENTITLED "WARRANTIES", COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, DATA, LIST AND CAMPAIGNS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SERVICES, DATA, LIST AND CAMPAIGNS SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF COMPANY WHATSOEVER.
- Indemnification. Each party shall indemnify and hold harmless the other, its officers, directors, employees, sublicensees, affiliates, contractors and agents from any and all claims, losses, liabilities, damages, expenses and costs (including attorneys' fees and court costs) which result from claim, complaint or cause of action from breach of any statement (a "Claim") set forth in the section "Warranties" of this Agreement, provided that each gives the other prior Written Notice of any such Claim and the indemnified party has the right to participate in the defense of any such Claim at its expense. If Advertiser does not have, or will not acquire, an encrypted or SSL secured data transfer means, then Advertiser knowingly and voluntarily assumes all risk of unsecured data transfer, to and from Advertiser, and shall indemnify and hold harmless Company, its officers, directors, employees, sublicensees, affiliates, contractors and agents from any and all Claims, losses, liabilities, damages, expenses and costs (including actual attorneys' fees and court costs) which result from any Claim, complaint or cause of action relating to or arising out of unsecured data transfer, provided that Company gives Advertiser Written Notice of any such Claim and Company has the right to participate in the defense of any such Claim at its expense.
- Termination and Term. Either party may terminate this Agreement with cause for material breach by the other with 1 business day prior Written Notice and failure to cure. In the event of termination by Company on the grounds of material breach by Advertiser, any unpaid amounts becomes immediately due in full and the Campaign will be terminated no later than the effective date of termination; no refunds of any kind will be issued. Failure to make 2 or more payments in a timely manner is considered material breach and failure to make any payment in a timely manner may result in suspension and/or termination of the Campaign, IO and this Agreement at Company's sole discretion. Either party may terminate this Agreement, without cause upon with 7 business day's prior Written Notice; such termination does not relieve obligations hereunder to make payment for all Payable Units. This term of this Agreement shall begin upon the Effective Date and end upon completion of final payment of all amounts due to Company hereunder or the End Date of the last IO not renewed; if not-renewed by Advertiser, then all amounts hereunder become immediately due as of the End Date. The Sections entitled "Payment", "Payment Procedures", "Confidential Information", "Warranties", "Indemnification", "Termination and Term", "Limit of Liability", and "Miscellaneous" shall survive termination.
- Miscellaneous. Either party may assign this Agreement to any successor in interest who purchases, or through change in control owns, greater than fifty percent of the assets or equity of such entity and agrees in writing to be bound by the terms and conditions herein; any other assignment shall be void. This Agreement shall be governed by, enforced under, and construed and interpreted in accordance with the laws of Florida without reference to conflict of laws principles. Each party consents to venue and personal jurisdiction in Broward County, FL. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. This Agreement, constitutes the entire agreement between the parties related to the subject matter thereof, supersedes any and all prior or contemporaneous agreements between the parties relating to advertising. Any conflicting or differing terms in any IO which is dated after the Agreement shall supersede the Agreement; the Agreement shall supersede any conflicting or differing terms in any IO dated prior to the Agreement. Any defined terms in any IO shall have the same meaning herein, or if undefined, then shall have the meaning ascribed by the Company in its sole discretion. If any term in this Agreement or an IO is undefined or open to more than one interpretation, then it shall have the meaning ascribed by the Company in its sole discretion. This Agreement may only be amended through execution of an amendment or future IO by authorized representatives of both parties. This Agreement will not be governed by the U.N. Convention on the International Sale of Goods, the application of which is expressly excluded.