These Adiply Publisher Terms and Conditions (“Terms”), any addenda attached hereto, which are hereby incorporated by reference (“Addenda”), and any Inventory Purchase Agreement entered into between the parties (“IPA”) (collectively, the “Agreement”), between Adiply LLC and its affiliates, (“Adiply”), and the individual or entity entering into this Agreement (“Publisher”) shall govern Publisher’s participation in the Adiply Network. In the event of any inconsistency between the Terms, the Addenda and an IPA, the following order of precedence shall apply: the IPA, followed by the Addenda, followed by the Terms. Capitalized terms not defined herein shall have the meanings assigned to them in the Addenda.
“Action” means a specific activity that is required to qualify for the payment of the display of a Creative, i.e., click, purchase, registration, etc., which activity will be set forth in the IPA or in the associated online program.
“Adiply Network” means the third party websites through which Adiply can distribute Creatives, including the Display Network and others.
“CPA” means a campaign for which Publisher shall be paid on a cost per Action basis.
“CPC” means a campaign for which Publisher shall be paid on a cost per Unique Click basis.
“CPM” means a campaign for which Publisher shall be paid on a cost per thousand Impressions basis.
“Creative” means advertising materials of any type used under this Agreement, including, but not limited to, buttons, banners, text-links, Display Creatives.
“Display Creative” means a graphic image or media object used as an advertisement.
“Display Network” means the third party websites through which Adiply distributes Display Creatives.
“Impression” means an instance in which a Creative is served to, and received by, a Unique Visitor on the Publisher Website as measured by Adiply, not including automated page refreshes.
“Invalid Click” means any click on a Creative that (i) causes the web surfer to reach a destination other than the intended destination (an incorrect redirect), which may be caused by a server malfunction on the Publisher Website, or because of alterations made by Publisher or erroneous coding placed on the Publisher Website; or (ii) results from applying repeated manual or mechanically automated clicks on mouse or keyboard or any other non-human click generation processes (including but without limitation robots, spiders, scripts or other software) as well as all other clicks resulting from methods that Adiply determines to be fraudulent in nature, or resulting from incentives or misleading or coercive means.
“Net Revenue” means, with respect to any particular period of time, the amount invoiced by Adiply to advertisers with respect to Creatives on the Publisher Website, less the following deductions: (i) transaction fees, (ii) third party campaign referral fees and commissions, (iii) applicable ad serving and technology fees paid to third parties, (iv) fees paid by advertisers for training and implementation services, and (v) Invalid Clicks.
“Revenue Share” means, with respect to a campaign for which payment is based upon a percentage of Net Revenue, an amount equal to the product of (i) the Net Revenue during the applicable calendar month, multiplied by (ii) the applicable revenue share percentage payout rate.
“Network Tags” means scripts provided by Adiply that are designed to be inserted into the code of the Publisher Pages, which scripts communicate with servers designated by Adiply and request transmission from those servers of Creatives.
“Marks” means a party’s trademarks, service marks, logos and trade dress.
“Publisher Page” means a web page on the Publisher Website.
“Publisher Website” means a website, application, or other media owned or operated by Publisher, or on which Publisher is otherwise legally authorized to act in the manner contemplated by this Agreement.
“Unique Click” means an instance in which a person viewing the Publisher Website, as identified by cookie or IP address, clicks on a Creative, as measured by Adiply (provided however, that a click on a specific Display Creative by a particular person shall only be counted as a Unique Click once every 1-hour period).
“Unique Visitor” shall mean a visitor to the Publisher Website as identified by Adiply based on such visitor’s IP address.
“User Interface” means an online tool provided by Adiply through which Publishers may access reports and such other campaign management functions as may be available from time to time.
a) Network Tags. Adiply requires placement of Network Tags on the Publisher Websites participating in the Adiply Network. Publisher shall use reasonable efforts to promptly place and enable the Network Tags.
b) License Grant. Subject to the terms and conditions of this Agreement, Adiply grants to Publisher a limited, non-transferable, non-exclusive, non-sub-licensable right and license to use the Network Tags and display Creatives on the Publisher Website, solely for the purposes of performance of this Agreement and solely during the term thereof.
c) Restrictions; Prohibited Activities. Publisher shall not do any of the following: (i) Place the Network Tags on any Publisher Website that have not been specifically approved for participation in the Adiply Network. Approved Publisher Websites will be specified in the IPA or online program. In addition, Adiply may approve additional Publisher Pages or Publisher Websites in writing (with email being sufficient) in its sole discretion. (ii) Alter, reverse engineer, decompile, disassemble, sell, rent, lease, sublicense, transfer, or otherwise make available the Network Tags or Creatives or any copies thereof to any third party, or create derivative works therefrom. (iii) Copy the Network Tags or Creatives, except for performance of this Agreement or for backup, archival and disaster recovery purposes. (iv) Place Network Tags on blank web pages or on web pages with no content; stack Creatives (e.g. place on top of one another so that more than 2 ads are next to each other), or in a fashion that may be deceptive to the visitor in that it causes the Creatives to look like editorial content. (v) Serve Creatives from any location other than the Adiply server (stored images that are loaded from a different location will not count towards any statistic or payment). (vi) Induce persons to click on Creatives based on incentives (e.g. rewards programs). (vii) Use unsolicited email to promote Creatives. (viii) Use autospawning browsers, or automatic redirecting of visitors, blind text links, misleading links, forced clicks (i.e. requiring a visitor to click on a Creative because their browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks. Publisher recognizes that a breach of any of these conditions could result in immediate, extraordinary and irreparable damage to Adiply and its relationships with its advertising clients, and that damages may be difficult to measure. Upon a determination by Adiply, in its sole discretion, that Publisher has violated any of the foregoing conditions, Publisher agrees that Adiply may, in addition to other legal remedies, assess liquidated damages of up to $1,000.00 per occurrence of each such violation, and that such liquidated damages are reasonable.
d) Prohibited Content. Adiply does not accept any Publisher Website that contains the following content: (i) any content that contains or promotes concepts that are hateful or disparaging towards any race, religion, gender, sexual orientation or nationality; (ii) any content that promotes firearms, bombs and other weapons or how-to guides for any of the above; (iii) Any content that contains or promotes illegal activities, including, but not limited to hacking, phreaking and online gambling; (iv) any content that contains or promotes pornography or graphic sexual depictions; (v) any content that contains, promotes or links to indecent, obscene or highly explosive subject matter; (vi) Any content that facilitates or promotes illegal file-sharing (MP3s, copyright protected video, or the equivalent) (collectively referred to as the “Prohibited Content”). Publisher represents and warrants that during the term of this agreement none of the Publisher Websites on which it places Creatives shall contain or promote any Prohibited Content.
e) Ownership Rights. Except for the limited license rights expressly granted to Publisher in this Agreement, Adiply retains all right, title and interest in and to the Adiply Network, the technology utilized by Adiply to operate the Adiply Network, the Network Tags, and the Creatives, including but not limited to all patent, trademark, copyright, trade secret and all other intellectual property rights therein.
f) Publisher Responsibilities. Publisher is solely responsible, at its own expense, for procuring, maintaining and operating all hardware, software, networks, systems and third-party services (e.g., Internet access) necessary to (i) operate the Publisher Website, (ii) use the Network Tags, (iii) display the Creatives, and (iv) access and use the Adiply Network services.
a) General. Publisher offers advertising impressions at a cost per thousand impressions (“CPM”). Adiply will purchase select inventory from Publisher and provide a portion of the revenue to the Publisher. All amounts earned and to be paid to Publisher will be calculated solely on the basis of Adiply’s statistics (“Publisher Earnings”). A 30-day period will be necessary to validate purchases; Adiply will carry out systematic fraud detection. Adiply maintains the right to adjust revenue share up or down according to varying circumstances. Publisher acknowledges and agrees that Adiply shall have no obligation to purchase any advertising inventory from Publisher. Payments will be made via PayPal, ACH, WIRE, or check depending on the Publishers preference. Payments will only be made if a publisher earns $0.50 cents USD or more in a given month. Publisher earnings of less than $0.50 cents are subject to an Account Maintenance Fee. Any dispute regarding a payment hereunder must be submitted to Adiply in writing within sixty (60) days of such payment or it shall be deemed waived. To ensure timely payment, Publisher must notify Adiply at firstname.lastname@example.org of any changes to its account information, including change of address, phone or email address. If Publisher has failed to notify Adiply of changes in Publisher’s account information, causing Adiply to be unable to notify Publisher in writing, then this Agreement shall terminate without notice, and all payments due Publisher shall be governed by the unclaimed payment provision below as if the payments due had been in the form of an unclaimed payment. Any fees for transferring money out of the US shall be the responsibility of Publisher.
b) Unclaimed Payment. If Adiply sends a PayPal payment due to Publisher under this Agreement to the Publisher’s last known PayPal address, Publisher must claim their PayPal payment within one (1) year of the date of sending or failing so to do, Publisher agrees that: (i) the funds represented by the unclaimned payment shall be disposed of without further notice as provided herein; (ii) for a Publisher whose last known address is in a state that has a business to business exemption in its unclaimed property laws, the Publisher agrees that it shall have no further interest in the funds represented by the unclaimed payment, and Adiply shall succeed to the Publisher’s interests therein; (iii) for all other Publishers, the funds represented by the unclaimed payment shall be deemed abandoned under applicable unclaimed property law; and (iv) Publisher agrees that one year is a reasonable period after the expiration of which the actions described above shall be taken.
c) Withholding Payment. Adiply reserves the right to withhold payment from Publisher if Publisher has engaged in activity that is deceptive or fraudulent in nature as determined by Adiply in its sole discretion. Examples of such deceptive or fraudulent acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs. In addition, with respect to Display Creatives, in no event may more than five percent (5%) of Unique Visitors for any payout calculation come from one IP address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation.
d) Taxes. Adiply assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the Adiply Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold Adiply harmless from any such taxes. Adiply shall provide Publisher with appropriate tax information, including earnings on Form 1099 as required by applicable law. If Publisher resides in the United States, then Publisher agrees to provide its Social Security number or Federal Employee Identification Number and any other reasonable information to Adiply for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If Publisher resides outside of the United States, then Publisher may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. Adiply may withhold payment from Publisher in the event that Publisher does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Adiply’s sole and absolute discretion.
e) Account Maintenance Fee. Publishers earning less than $0.50 cents USD in any given month are subject to an account maintenance fee equal to the lesser of $0.50 cents or their earnings for that month. Publishers earning more than $0.50 cents in a given month will not be subject to the account maintenance fee.
Adiply shall have the responsibility in its absolute and sole discretion for calculation of statistics and payments, including, but not limited to, Impressions, Unique Clicks, Actions and revenue generated on or through the Publisher Website, as applicable.
This Agreement shall terminate and renew in accordance with the term and termination provisions of the applicable Addenda and/or IPA. Upon termination, any licenses granted by Adiply hereunder shall immediately terminate and Publisher must remove all Network Tags from the Publisher Website and cease delivery of any and all Creatives. In the case of termination, Adiply will pay Publisher all uncontested amounts due during the next billing cycle. The following Sections of the Agreement, and those which by their nature are ongoing obligations, shall survive any expiration or termination of this Agreement: 4, 5, 6, 7, 8, 9, 10(ii) and 11 through 18.
ADIPLY WILL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF adiply WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ADIPLY’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY EITHER PARTY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. EACH PARTY AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE OTHER PARTY FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST ADIPLY MORE THAN ONE YEAR AFTER THE DATE OF SERVICE UNDER THIS AGREEMENT.
a) Publisher. Publisher hereby agrees to defend, settle and pay damages on behalf of Adiply and its officers, directors, agents, affiliates and employees associated with any and all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings (i) for libel, defamation, violation of right of privacy or publicity, breach of contract, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with the Publisher Website (except for Creatives supplied by Adiply, unless such Creatives were modified by Publisher without the express written consent of Adiply); (ii) arising out of any material breach by Publisher of any term, condition, representation or warranty under this or any other agreement with Adiply; or (iii) relating to a contaminated file, virus, worm, or Trojan horse originating from Publisher’s Website (other than through a Creative supplied by Adiply, unless such Creative was modified by Publisher without the express written consent of Adiply).
b) Adiply. Adiply hereby agrees to defend, settle and pay damages on behalf of Publisher and its officers, directors, agents, affiliates and employees associated with any and all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of a material breach by Adiply of any term, condition, representation or warranty under this Agreement.
c) Indemnification Procedures. Any claim for indemnification hereunder shall be subject to the following provisions: (i) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
Each party (“Discloser”) acknowledges that during the performance of its obligations under this Agreement, it may disclose Confidential Information (as defined below) to the other party (“Recipient”).
a) Defined. ” Confidential Information” means information regarding Discloser’s trade secrets, personnel, products, customers, financial data, marketing and pricing strategies, services, business plans, methods, computer systems architecture, network configurations, any information which is governed by any now-existing or future non-disclosure agreement between the parties, and any other information which is or should reasonably be understood by Recipient to be of a confidential or proprietary nature.
b) Obligations. Recipient agrees that it will not disclose any Confidential Information to anyone except an employee, agent or advisor (collectively, “Representatives”) 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, and that it will not use Confidential Information for any purpose not permitted under this Agreement. Recipient will protect the Confidential Information in the same manner it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care.
c) Exceptions. The foregoing obligations shall not apply to the extent Confidential Information must be disclosed by Recipient to comply with any requirement of law or order of a court or administrative body (provided that Recipient agrees to notify Discloser of the issuance of such order as soon as practicable, to reasonably cooperate with Discloser (at Discloser’s expense) in its efforts to convince the court or administrative body to restrict disclosure), and to disclose only the portion of such information that it is legally required to disclose. “Confidential Information” does not include information that: (ii) is known to or in the possession of Recipient prior to its disclosure to Recipient hereunder, as evidenced by the Recipient’s written records; (iii) is or becomes known or generally available to the public through no act or omission of Recipient or its Representatives in breach of this Agreement; (iv) is made available free of any legal restriction to Recipient by a third party ; or (iv) is independently developed by Recipient without use of or reference to Confidential Information. Notwithstanding anything to the contrary in this Agreement, Adiply may use and disclose any aggregate information (i.e. information that does not identify or relate specifically to Publisher), which it has collected or received in providing the service, to the extent necessary to perform, enhance or improve its services and/or for Adiply’s business and marketing purposes.
Publisher authorizes Adiply to disclose its membership in the Adiply Network and grants Adiply a non-exclusive, worldwide, royalty-free right and license to use, reproduce and display:
(i) Publisher’s Marks in connection with Adiply’s sales materials and presentations and as otherwise needed to perform its obligations under this Agreement; and (ii) Publisher’s Marks and statistics relating to the performance of a particular advertiser or agency’s Creative on the Publisher Website, to such advertiser or agency. In addition, Publisher agrees that Adiply may sublicense the foregoing rights to third party partners procuring Creatives on its behalf. Publisher may not disclose its membership in the Adiply Network or use Adiply’s Marks without the prior written consent of Adiply.
This Agreement, as and if amended, and the associated IPA, shall constitute the entire and only agreement between the parties regarding Publisher’s participation in the Adiply Network, and shall supersede all previous communications, representations or Agreements, whether written or oral between the parties relating to the services provided hereunder. Publisher may not assign this Agreement or any IPA without the prior written consent of Adiply, which consent shall not be unreasonably withheld. Any assignment by Publisher without such consent shall be void ab initio. This Agreement shall inure to the benefit of all permitted successors and assigns.
a) Both Parties. Each party represents and warrants to the other that (i) it has the full right, 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 agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when agreed to.
b) Publisher. Publisher represents and warrants that (i) it is legally authorized to place the Network Tags on the Publisher Website and to perform its obligations herein with respect to the Publisher Website; and (ii) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations.
c) Adiply. Adiply represents and warrants that it (i) has all necessary licenses and clearances to use and permit Publisher to use the Network Tags and Creatives in the manner authorized by this Agreement, and (ii) will comply with all applicable laws, rules and regulations relevant to the performance of its obligations under this Agreement.
Adiply shall have the right to change, modify or amend these Terms, in whole or in part, by posting revised Terms on its website at least five (5) days prior to the effective date of such change. Publisher’s continued use of the Adiply Network after the effective date of such change shall be deemed Publisher’s acceptance of the revised Terms.
NEITHER PARTY MAKES ANY WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE AND ALL SUCH WARRANTIES ARE DISCLAIMED, EXCEPT AS EXPRESSLY SET FORTH HEREIN. PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE, OR ANY REVENUE, WILL BE GENERATED AS A RESULT OF THIS AGREEMENT.
This Agreement will be governed by and construed in accordance with the substantive laws of the State of New York without regard to its conflict of law principles. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts situated in the city of New York, New York in connection with any action arising between the parties.
If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. The captions appearing in this Agreement are inserted only as a matter of convenience. This Agreement shall be interpreted as if drafted jointly by the parties.
Neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure”).
Notices may be provided via e-mail, fax, or other written means and will be effective immediately.
The following addendum supplements the Terms and applies to the delivery of Display Creatives.
1. Content; Availability of Inventory. In the event that Publisher materially changes the Publisher Website content after approval into the Adiply Network, Publisher must send written notice to Adiply of the changes immediately. Notices should be sent to Publisher’s Account Manager or to email@example.com. Publisher’s participation in the Adiply Network is non-exclusive and all inventory is preemptible at Publisher’s sole discretion.
2. Delivery and Suspension of Advertising Campaigns. Adiply may fill Impressions with Creatives offered by Adiply or by third party partners. All delivery shall be subject to frequency capping and targeting parameters established by Adiply, and Publisher agrees that Adiply may access, crawl, index and cache the Publisher Website or any portion thereof for such purposes. Unused impressions that are not filled with Creatives may be redirected to Publisher via a redirect link provided or approved by Publisher. Publisher shall activate the Network Tags no later than thirty (30) days after execution of this Agreement or the associated IPA. Publisher shall not remove the Network Tags for more than thirty (30) consecutive days during the term of this Agreement or the associated IPA. In the event that Adiply determines that Publisher violated one or more of the foregoing sentences in this Section 2, Adiply may, at its option, revert to a lower payment rate to Publisher.
3. Provision of Impressions. Unless otherwise agreed by Adiply in writing, Publisher shall ensure that there are no Spikes in the number of Impressions delivered to Adiply during a given calendar month, and Adiply, may, in its sole discretion, reject Impressions that are delivered as part of a Spike. A “Spike” means the delivery of Impressions equal or greater than two times the number of Impressions set forth in the applicable Addenda or IPA for three (3) consecutive days, subject to a minimum of five million (5,000,000) Impressions per day, on the Display Network.
4. Payment and Reporting. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes. Statistics regarding Display Creatives shall be available to Publisher online at adiply.co. Publisher acknowledges that in some cases, Adiply will need to make adjustments to reported statistics due to specific contractual provisions (e.g., bonuses), Invalid Clicks, statistical errors, or third party tracking provided by advertisers or their agencies
5. Termination. These terms and conditions, as and if amended, shall apply to Publisher for as long as Publisher is a member of the Adiply Network. Unless otherwise set forth in the associated IPA, either party may terminate this Agreement or the associated IPA at any time, for any reason whatsoever, upon written notice to the other party.
The following terms and conditions apply to the services provided by Adiply.co (“Adiply”), and constitute an agreement between the parties. The agreement (the “Agreement”) is entered into effect as of the date of execution noted on the Insertion Order (the “Order”), if one exists, between Adiply and the party or parties requesting services from Adiply listed on the order (the “Advertiser”). If no Insertion Order exists, then this Agreement is effective when the Advertiser selects “I have read and agree to the Terms and Conditions” on the Adiply website.
Adiply’s sole obligation under this Agreement will be to use commercially reasonable efforts to deliver the display advertisements (“Creative”) in the manner specified in the Order unless otherwise specified. All Creative will be subject to Adiply’s approval. Adiply reserves the right to reject, discontinue, or omit any Creative or any part thereof for any reason. This right will not be deemed waived by acceptance or actual use of any Creative. The Advertiser grants Adiply a non-exclusive, non-transferable, worldwide right to reproduce and publicly display the trademarks, trade names, service marks, and logos of Advertiser for purposes of advertising. Adiply will not disclose any details of the campaign, including but not limited to: campaign budget, campaign type, campaign duration, campaign metrics, and results of any and all campaigns associated with the Advertiser without prior consent.
Under no circumstances will Adiply be liable for any indirect, incidental, consequential, special or punitive damages of any kind or nature (even if such damages are foreseeable, and whether or not Advertiser had been advised of the possibility of such damages) arising from any aspect of this Agreement. Notwithstanding any other provision of this Agreement, the liability of Adiply will be limited to the total amount paid by Advertiser to Adiply under this Agreement. Adiply will not be liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond Adiply’s control affecting production or delivery in any manner.
Advertiser will indemnify Adiply and hold Adiply harmless from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by Adiply, arising out of or related to (a) Advertiser’s breach of any of the representations and warranties in this Agreement; (b) nonfulfillment of any obligation hereunder to be performed by Advertiser; or (c) infringement or alleged infringement of a third party’s intellectual property rights resulting from Adiply’s performance of its duties or exercise of its rights under this Agreement. Adiply will promptly notify the Advertiser of any threat of a claim that Adiply becomes aware of and that may give rise to a request for indemnification hereunder.
This Agreement will be for a term of 1 month. This Agreement will be extended in one month increments unless Advertiser sends notice within 5 days of Next Payment Date (defined as 30 days from when the Advertiser logs payment). Adiply retains the right to terminate this Agreement, in whole or in part, with or without cause, at any time. Upon termination for any reason, Advertiser will remain liable for any amount due for services delivered by Adiply and Advertiser’s obligation to pay will survive termination of this Agreement. Advertiser understands that the amount of time required to terminate a campaign is directly tied to settings found in their account and termination may take as long as 30 days from the date of notice. Advertiser will be responsible for any additional fees incurred during this period. Any cancellation notice will be based on the date the written notice was received by Adiply.
Advertiser must not assign, license, sublicense, or otherwise transfer any rights or obligations under this Agreement without the prior written consent of Adiply. Any such transfer will be void and without effect, and may constitute breach of this Agreement. Notwithstanding these provisions, rights and obligations under this Agreement may be transferred in the event that Advertiser is involved in a merger or an acquisition. Such transfer will only be effective if made to the surviving or acquiring company. All notices, requests, demands and other communications required or permitted under this Agreement must be in writing and delivered to the other party. Unless otherwise specified, this Agreement may only be modified, or any rights under it waived, by a written document executed by Adiply and Advertiser. This Agreement will be interpreted, construed and enforced in all respects in accordance with laws of the State of Texas, without regard to the state or country of incorporation or operations of Advertiser, or activity of either party in accordance with this Agreement. Advertiser hereby irrevocably consents to the exclusive jurisdiction of the courts of the State of Texas and the federal courts situated in Dallas County in the State of Texas in connection with any dispute arising under this Agreement. In the event that any provision of this Agreement is held by a court of law or other government agency to be void, voidable, or unenforceable, the remaining provisions will remain in full force and effect. The Confidentiality, Warranties, Limitation of Liabilities. and Indemnification provisions will survive any termination or expiration of this Agreement. This Agreement, in conjunction with the Order, sets forth the entire agreement between Advertiser and Adiply and supersedes any and all prior and contemporaneous agreements (whether written or oral) of Adiply and Advertiser with respect to the subject matter set forth.
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