POLARITY TECHNOLOGIES LTD ADBISTRO
ADVERTISER MASTER TERMS AND CONDITIONS
1. Introduction. These Master Terms are entered into by Advertiser and set forth the terms and conditions upon which AdBistro may deliver Advertiser’s Campaign. Capitalized words used in these Master Terms shall have the meanings ascribed to them in Section 2 below.
(a) “Action” means an act or event by a third party upon which Advertiser’s payment obligation is based, as set forth in this Agreement.
(b) “AdBistro” means Polarity Technologies Ltd, as identified in an Addendum or an Insertion Order
(c) “Addendum” means an addendum attached hereto or otherwise agreed to by Advertiser and AdBistro that incorporates these Master Terms.
(d) “Advertiser” means the individual or the business, company or other entity that accepts these terms electronically or otherwise or that enters into an Addendum or Insertion Order with AdBistro.
(e) “Agent” means an agency acting on behalf of Advertiser.
(f) “Agreement” means these Master Terms and any applicable Addendum and Insertion Order.
(g) “Campaign” means (i) the delivery of an Advertisementby AdBistro across AdBistro’s applicable network and, generally, consists of the Advertiser-selectedbudget, flight date(s), and geo-targeting selection(s), and/or (ii) the delivery of users to Advertiser content including, but not limited to, Web pages.
(h) “Consumer Data” means consumer-related data collected or provided by Advertiser under this Agreement, including but not limited to email addresses.
(i) “CPC” means cost per click.
(j) “CPM” means cost per thousand impressions.
(k) “CPU” means cost per user.
(l) “CPV” means cost per view.
(m) “Insertion Order” means a signed insertion order agreed to by Advertiser and AdBistro that incorporates these Master Terms.
(n) “Law” means applicable laws, rules, regulations, treaties, and statutes.
(o) “Master Terms” means these Polarity Technologies Ltd AdBistro Advertiser Master Terms and Conditions and each Addendum.
(p) “Network” means AdBistro or third party distribution networks, which may include but not be limited to the following: domain, email, newsletter, search, mobile, and displayed web content.
(r) “Taxes” means any government imposed taxes or charges imposed on Advertiser pertaining to the performance of this Agreement, including but not limited to value added, sales, use, withholding, and excise taxes.
3. Campaigns. (a) Advertiser may direct AdBistro to run Campaigns which have been approved by Advertiser pursuant to this Agreement.. Additionally, users may be redirected by AdBistro and/or its publishers to the Advertising Content via direct navigation.
(b) All requested URL links, , descriptions and bids are subject to AdBistro’s approval. AdBistro reserves the right to reject, cancel or remove any Advertising Content, URL link, descriptions and bids at any time for any reason whatsoever and AdBistro, its employees, consultants and other agents shall have no liability for such decisions. AdBistro does not guarantee that the Advertising Content will be available or displayed and
(c) ADBISTRO’S SERVICES ARE SUBJECT TO PERIODIC UPDATING, WHICH MAY RESULT IN INTRODUCTION, WITHOUT NOTICE, OF NEW DISTRIBUTION NETWORKS AND/OR ELIMINATION OR MODIFICATION OF EXISTING NETWORKS, AND CERTAIN PRODUCT OFFERINGS MAY BE CPA OR CPC BASED, NOTWITHSTANDING A DIFFERENT MODEL FROM SOME OR ALL OF THE OTHER PRODUCTS IN THE SAME NETWORK. SUCH MODIFICATIONS MAY HAVE AN ADVERSE IMPACT ON THE QUALITY OF CLICKS, ACTIONS, IMPRESSIONS, INSTALLS, OR OTHER PAYABLE EVENT UNTIL EACH UPDATE IS ASSESSED, PERFECTED OR REJECTED IN ADBISTRO’S SOLE DISCRETION.
(a) Advertiser shall pay for all charges incurred by Advertiser in connection with Advertiser’s Campaign. Unless otherwise set forth in an Insertion Order or an Addendum, the amounts owed are measured by tracking reports prepared by AdBistro, and Advertiser understands and agrees that such reports shall be sole measure of the amounts owed. Advertiser agrees to make timely payment to AdBistro regardless of whether Advertiser receives payment from its client, customer or any other third party. Advertiser acknowledges and agrees that Advertiser may be charged an amount up to ten percent (10%) more than Advertiser’s monthly Campaign budget for charges incurred resulting from the time it takes to effectively cease further payable events. Unless otherwise agreed in an Insertion Order or an Addendum, Advertiser’s full payment for each Campaign is due prior to commencement of the Campaign and may be made through ACH, wire transfer or any major credit card, unless otherwise required by AdBistro. Advertiser shall pay for all charges in US Dollars, unless otherwise agreed in writing by AdBistro. If Advertiser is offered and selects an autoreplenish feature, Advertiser hereby authorizes AdBistro to charge Advertiser’s credit card for the pre-determined amount set by Advertiser. If AdBistro is unable to charge Advertiser’s credit card, AdBistro may, in its sole discretion and in addition to any other remedies available to it under this Agreement and any and all Laws, suspend or terminate Advertiser’s account. Advertiser shall be responsible for the payment of any and all charges and/or fees incurred by AdBistro from any credit chargeback due to improper credit card information provided to AdBistro. AdBistro may, in its sole discretion, extend, limit, revise, or revoke credit terms to Advertiser, which may include, but not be limited to, requiring a parent guaranty. Advertiser understands and agrees that if Advertiser is past due in payments owed to AdBistro under this Agreement, (i) such past due payments shall accrue interest at the rate of 1.5% per month or the highest rate permitted by law, if less, (ii) all costs of collection, including but not limited to reasonable attorney’s fees, court costs and related expenses, shall be borne by Advertiser, and (iii) AdBistro may offset that amount from any payment otherwise owed by AdBistro or any parent, subsidiary, or affiliate of AdBistro to Advertiser or any parent, subsidiary, or affiliate of Advertiser. Advertiser is responsible for and shall pay all Taxes in connection with Advertiser’s performance hereunder. Payments due under this Agreement are exclusive of Taxes, unless otherwise agreed in writing by AdBistro.
(b) If Advertiser selects a CPC-based Network, payment obligation is based solely on the number of clicks and redirects multiplied by the amount Advertiser bid to pay for each click or redirect and not Advertiser’s ability to convert clicks or redirects to sales, registrations or other user actions. When Advertiser is the winning bidder for the display on the Network of Advertiser’s Ad Unit, the winning CPC bid price may be below Advertiser’s maximum CPC bid price, and shall not exceed Advertiser’s maximum CPC bid price, unless otherwise approved by Advertiser. If Advertiser selects a CPU or CPV-based Network, Advertiser shall pay AdBistro the CPU and/or CPV amount agreed by Advertiser for each user and/or view recorded. If Advertiser selects a CPM-based Network, Advertiser shall pay AdBistro the CPM amount agreed by Advertiser for each impression.
(c) Any demand for a chargeback, credit or refund for a product or Network service shall be tendered in writing to AdBistro (i) for prepaid accounts, within thirty (30) calendar days after the charge occurred, (ii) for invoiced accounts, within thirty (30) calendar days after payment due date, or (iii) if applicable, the period specified in the respective Addendum or Insertion Order. Any demand for a chargeback, credit or refund for a product or Network service may be investigated by AdBistro, and AdBistro shall not be obligated to chargeback, credit or refund after the period referenced in the immediately preceding sentence. Advertiser shall promptly pay all amounts billed and invoiced by AdBistro, notwithstanding Advertiser’s challenge to some or all of a particular invoice, and shall promptly and reasonably cooperate with any investigation undertaken by AdBistro in connection with payment(s) for services hereunder. AdBistro may issue to Advertiser a credit or refund, as it deems appropriate in its sole discretion. Advertiser understands that investigations may take several weeks to complete. Requests for information may include but not be limited to sub-IDs, IP address, and in the case of a lead challenged as being invalid, all information which was submitted in the lead form. Advertising credits provided by AdBistro shall expire, and be forfeited, upon the earlier to occur of (i) termination or expiration of this Agreement or the applicable Insertion Order or Addendum, or (ii) six (3) months after issuance by AdBistro. Advertising credits are non-refundable and may only be used for advertising in the Network for which such credits were issued.
6. Representations and Warranties of AdBistro. AdBistro represents and warrants that creatives and content used by AdBistro in Advertiser’s Campaign (i) are validly licensed for use by AdBistro, or are in the public domain, (ii) shall not be used in a manner constituting defamation, libel or patently offensive obscenity, and (iii) shall not infringe, dilute, misappropriate or otherwise violate any copyright, trademark, trade secret or other similar intellectual property rights of any third party, or otherwise violate or breach any duty toward, or rights of, any person or entity, including rights of privacy and publicity.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL ADBISTRO BE LIABLE TO ADVERTISER UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, REVENUE OR DATA IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF ADBISTRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE TOTAL AGGREGATE LIABILITY FOR ADBISTRO ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY ADVERTISER TO ADBISTRO FOR THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. ADVERTISER SHALL NOT HOLD ADBISTRO OR ITS AFFILIATES LIABLE OR RESPONSIBLE FOR THE ACTIVITIES OF VISITORS WHO COME TO ADVERTISER’S WEBSITE(S) THROUGH A LINK OR REDIRECT PROVIDED FROM ADBISTRO AND/OR AN ADBISTRO PUBLISHER.
8. Indemnity. Advertiser shall defend, indemnify and hold AdBistro, and its directors, officers, employees, representatives, publishers, agents, parents, and subsidiaries harmless from and against any judgment, loss, liability, cost, damage, or expense (including reasonable attorneys’ fees) arising out of a third party claim relating to a breach of this Agreement by Advertiser or any act or omission by Advertiser. Any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) that is subject to the indemnification obligations set forth herein shall be subject to the prior written approval of AdBistro, in its sole reasonable discretion, if such settlement or resolution results in any further obligation or liability for AdBistro.
9. Disclaimer of Warranties. OTHER THAN AS EXPRESSLY STATED HEREIN, EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND INCLUDING ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADBISTRO SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (A) THE NETWORK AND THE FUNCTIONALITY OR AVAILABILITY OF THE NETWORK, (B) THE NUMBER OF PERSONS WHO VIEW ADVERTISING CONTENT, (C) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM HAVING ADVERTISING CONTENT ADVERTISED HEREUNDER, (D) THE QUALITY OF CLICKS, ACTIONS, IMPRESSIONS, OR INSTALLS DELIVERED TO ADVERTISER OR HOW MUCH OF A LISTING IS DISPLAYED ACROSS THE NETWORK, AND (E) THE ERROR-FREE, DISRUPTION-FREE OR INTERRUPTION-FREE NATURE OF THE SERVICES PROVIDED BY ADBISTRO HEREUNDER. FURTHER, ADBISTRO DOES NOT GUARANTEE ANY RETURN ON INVESTMENT.
10. Termination. Any party may terminate this Agreement or any and all Insertion Orders (2) business days’ prior written notice to the other or upon the notice period set forth in an Addendum or an Insertion Order. Advertiser’s sole and exclusive remedy for dissatisfaction with the services provided by AdBistro is termination of this Agreement. Notwithstanding anything to the contrary in this Agreement, any amount remaining in an Advertiser account under $75 after termination or expiration of this Agreement shall be forfeit to AdBistro.
11. Agent. If these Master Terms are entered into by an Agent, Agent represents and warrants that it has the power and authority as Advertiser’s agent to bind Advertiser to this Agreement, and that all of Agent’s actions related to this Agreement will be within the scope of such agency. Agent agrees to use commercially reasonable efforts to collect and clear payment from Advertiser on a timely basis. Agent acknowledges and agrees that AdBistro may seek payment directly from Advertiser if AdBistro has not received payment in a timely manner.
12. Survival of Obligations. The term of this Agreement shall begin on the date Advertiser’s application to open an advertising account is accepted by AdBistro. This Agreement may expire or terminate as described herein. The terms of Sections 1, 2, and 7 through 19 of these Master Terms shall survive any termination or expiration of this Agreement, together with Advertiser’s obligation to make payments to AdBistro under this Agreement for services rendered before the date of termination or expiration.
13. Publicity. Advertiser grants AdBistro a limited, revocable, fully-paid, royalty-free, worldwide right and license to display Advertiser’s logo in promotional material to identify Advertiser as a customer of AdBistro. Additionally, AdBistro may reference Advertiser in a general press release which does not reveal any specific terms or conditions of this Agreement, depicting Advertiser’s corporate logo, publicizing the fact that an agreement has been executed. Any other public statement or press release referencing the name or trademark of a party shall only be made upon the express prior written consent of such party.
14. Entire Agreement. This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, communications, and understandings (whether written or oral) between the parties, with respect to their subject matter. No party has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement, any correspondence or communication preceding the execution of this Agreement, or any prior course of dealing between the parties. If there is any conflict between the terms of these Master Terms, an Addendum, and any Insertion Order, the order of priority for resolution of the conflict shall be the Insertion Order followed by the applicable Addendum, followed by the Master Terms. Except as otherwise agreed in writing signed by a duly authorized representative of AdBistro, AdBistro expressly rejects any and all terms, conditions and provisions provided by Advertiser that are supplemental to, or otherwise related to, this Agreement including, but not limited to, any standard terms and conditions of Advertiser and any Advertiser insertion order.
15. Choice of Law and Venue. This Agreement shall be interpreted and enforced in all respects under the laws of Cyprus as applicable to contracts to be performed entirely within Cyprus. Any litigation arising out of this Agreement will be brought solely and exclusively in the courts of Cyprus, and the parties agree that jurisdiction and venue properly lie in such courts and waive any claim that a proceeding in any such court has been brought in an inconvenient forum. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
16. Force Majeure. Except as otherwise expressly stated in this Agreement and except for payment obligations, the parties shall not be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, terrorism, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.
17. Waiver. Failure by a party to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect a party’s right to later enforce such provisions.
18. Severability. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.