This Advertiser Agreement (“Agreement”) is entered into by and between Beachside, Inc. (“Media Company”) and the person or company registered with Media Company to provide promotional services as set forth in this Agreement (“Advertiser”) for the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged. (singularly “Party” and combined “Parties”) This Agreement and any accompanying and subsequent Insertion Order(s) (“IO(s)”), if provided, shall define Media Company and Advertiser’s obligations with respect to Media Company’s posting of Advertising Content on Advertiser’s behalf (“Campaigns”). Each IO and/or Campaign submitted by Advertiser shall incorporate this Agreement and each shall be considered a single contractual agreement. In the event of a conflict between any term of an IO and this Agreement, the IO shall govern. Any change is effective only as to the Campaign identified in the IO. Each IO submitted by Client shall incorporate this Agreement without further reference. In the event that Media Company is required to digitally sign or agree to additional terms during the provision of Services on behalf of Advertiser, both Parties agree that such digital agreement is inconsequential and in no way binding, that it is the result of a technical requirement, which cannot quickly be altered. Therefore, any terms which appear on any website or platform shall be disregarded and deemed ineffective, being superseded by this Agreement.
- Term, Termination and Survival.
1.1 Term and Termination. This Agreement will commence on the date set forth in the initial IO and will continue thereafter until the termination date set forth in the final IO. (“Contract Term”) or until the Agreement is terminated by Party may terminate the Agreement upon two (2) business day’s written notice (email sufficient) to the other Party at any time and for any reason.
1.2 Survival. Notwithstanding anything else herein to the contrary, the following provisions will survive any termination of the Agreement and continue in full force and effect thereafter: Sections 2 through 7, as well as any other provisions that, by their nature, are intended to survive. Each Party acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all the risks (both known and unknown) associated with the transactions contemplated hereunder. Further, all provisions are inserted conditionally on their being valid in law. In the event that any provision of this Agreement conflicts with the law under which the Agreement is to be construed or if any such provision is held invalid or unenforceable by a court with jurisdiction over the parties to the Agreement: (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants, and restrictions of the Agreement will remain in full force and effect.
1.3 Cancellation of Campaign. Notwithstanding any other provision in this Agreement, Media Company expressly reserves the right to: (i) reject or cancel any Campaign for any reason at any time; (ii) refuse or cancel any Advertising Content for any reason at any time; including but not limited to such Advertising Content that, in its reasonable discretion, violates an applicable law, rule or regulation governing the same or which is reasonably believed to be an invasion privacy, degrading, libelous, profane, obscene, pornographic, tend to ridicule or embarrass, are in bad taste, or which infringes on a trademark, trade name, or copyright belonging to others, or is otherwise inappropriate. All Campaigns are subject to capacity limitations which include software, hardware, bandwidth, inventory availability, payment terms, credit history, creative performance, and market pricing limitations. Any Campaign rejected or cancelled by Media Company may be replaced by Advertiser provided that any such replacement material must be acceptable to Media Company and accompanied by written request for replacement which identifies the Campaign to be replaced.
- Advertiser Campaign.
2.1 Advertising Content. Advertiser shall provide all creative and substantive copy content materials (“Advertising Content”) required for posting the Campaign. To the extent Advertiser retains the services of Media Company to provide Advertising Content; Advertiser shall approve such content prior to posting of the campaign. Advertiser is solely responsible for the Advertising Content irrespective of whether Media Company provided the same for approval. By submitting or approving any email creative or content, Advertiser represents and warrants that: (i) the submission meets all applicable regulations and laws in effect governing the submission at the time of such submission; (ii) accurately reflects Advertiser’s product or service being advertised; (iii) does not violate any applicable law or regulation governing deceptive advertising or consumer protection laws for internet advertising; and (iv) does not violate any third party intellectual property rights. For email campaigns, Advertising Content shall include the “From” name of the advertiser, physical opt-out address, functioning suppression link and access to Advertiser’s suppression file.
2.2 Limited License. Advertiser hereby grants to Media Company and its third party publishers and affiliates a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaigns in connection with its obligations set forth in this Agreement.
2.3 Functionality. Advertiser agrees to confirm the correct function of all Advertising Content supplied to Media Company within twenty-four (24) hours of the Campaign start. If no confirmation is received within this time frame, Media Company shall be entitled to presume that the Advertising Content is functioning properly and Advertiser agrees to pay for all impressions, clicks or leads derived from the Advertising Content as measured by Media Company. All issues related to Advertising Content should be immediately brought to the attention of the Media Company account executive for Advertiser. Media Company is not liable for errors in position and/or placement of the Advertising Content, or typographic errors of any kind.
2.4 Allowed Alterations. Advertiser agrees to allow Media Company to make changes or alterations to the Advertising Content for the sole purpose and intent of matching it to the medium of delivery. Neither Media Company nor its affiliates shall make any other changes to the Advertising Content. Media Company may, at its option, modify the flight date of a Campaign if the Advertising Content or linking URL’s are not delivered on time or there are delays due to third party ad-serving, inventory fluctuation or other issues beyond its control.
- Billing and Payment.
3.1 Tracking. Conversions, sales, leads, and/or clicks (“User Actions”) shall be tracked by both parties. Media Company shall have the right to place a tracking pixel on Advertiser’s website, as may be required to track and provide estimated periodic statistics for Media Company or its publishers and affiliates. In the event of a dispute between Advertiser’s tracking (if any) and Media Company tracking, a detailed report will be exchanged between the parties including details of each User Action for tracking purposes. Unless disputed, Media Company tracking count shall be used for invoicing purposes under this Agreement. The technical specifications of Advertiser’s tracking system must be met to the reasonable satisfaction of Media Company before any advertising or ad-serving will be provided by Media Company. Upon request, Media Company shall provide a login where Advertiser can retrieve summary reports reflecting the number of units delivered and/or Media Company shall have reports submitted to Advertiser in a manner and method as agreed upon by and between the Parties. Media Company, in its reasonable discretion and in consultation with Advertiser, will determine the form of said reports. If Advertiser removes or manipulates the tracking code at any time during the Campaign, without express written permission from Media Company, Media Company may suspend performance and, if applicable, Advertiser agrees to pay Media Company for the days during which tracking code was absent or manipulated based on the average daily conversion measurements (using daily click counts and/or conversions for the seven (7) days prior to the tracking code being removed or manipulated). In the event that a Campaign is suspended or cancelled at any time while the campaign is active, Advertiser agrees to pay for all conversions, sales, leads, and/or clicks generated from the campaign for a period of thirty (30) days following said suspension or cancellation unless otherwise agreed upon.
3.2 Invoicing and Payments. The applicable IO for each Campaign shall specify the price and payment terms. As set forth the in the applicable IO or no later than once every thirty (30) days, Media Company will send Advertiser an invoice. The invoice is the only report to be construed as representative of billable amounts. All IO’s are subject to ten percent (10%) over-delivery for which Media Company shall be paid. Advertiser shall retain books and records pertaining to the Units delivered and other data necessary to compute the charges hereunder for at least one (1) year after the conclusion of each Campaign. Media Company, its agent or designee shall have the right to audit such books and records upon reasonable notice. If the audit reveals an underpayment, Advertiser shall promptly pay to Media Company such underpayment along with past due interest from the time originally due until paid. If the amount of the underpayment is more than five percent (5%), Advertiser shall also be obligated to pay to Media Company its reasonable audit expenses. All payments must be in U.S. dollars. Advertiser agrees that all refunds will be resolved through wired funds, check or reversal of credit charges. In the absence of a corresponding IO for any given campaign, payment shall be due to Media Company within fifteen (15) days of receipt of each and every invoice. Any late payments, including any underpayment found from any audit will accrue interest equal to one and a half percent (1.5%) per month, or the maximum amount allowable under law, whichever is less, compounded monthly.
3.3 Disputed Invoice. In the event that Advertiser disputes an invoice, Advertiser shall timely pay all undisputed amounts in the invoice and provide Media Company written notification of such disputed which shall attach all supporting documentation therefore, within three (3) days from the date of the invoice. If Media Company does not receive the written notice of dispute within three days of the date of the invoice, the parties agree that invoice will be deemed valid and payable and may not thereafter be disputed.
3.4 Collections. In the event that Media Company incurs expenses related to collection of any outstanding balance and/or late fees, Advertiser shall immediately pay Media Company reasonable expenses associated with said collection, including, without limitation, reasonable attorney’s and collection agency’s fees. Media Company, in its sole discretion, may remove the Advertising Content and/or terminate this Agreement immediately if Advertiser fails to pay any amount due hereunder.
- Exclusive Campaigns / Non Solicitation.
4.1 Exclusive Campaigns. If the IO identifies the Campaign for exclusive distribution, Advertiser shall not, without the prior written consent of Media Company, engage in or be involved with advertising, marketing or distributing of any products subject to the exclusive campaign on the world wide web, for a period commencing on the date of the IO and ending six (6) months following written termination of the Campaign. Advertiser acknowledges and agrees to the following: (i) the time restrictions in this Section 4 are reasonable; (ii) the restrictions imposed by this Section 4 will not impair Advertiser’s ability to promote and further its business model; and (iii) monetary damages would be insufficient in the event of a breach of this covenant of exclusivity.
4.2 Non-Solicitation of Media Company Employees. Advertiser agrees that during the term(s) of this Agreement and for a period of three (3) years thereafter, it will not directly or indirectly solicit the employment of Media Company employees, officers or directors, provided, that employment solicitations directed to the general public shall not be prohibited pursuant to this Section. The parties agree and understand that a material breach of this Section 4 will cause the non-breaching Party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching Party will, in addition to all other remedies, may be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond. The foregoing remedy is a material, bargained for basis of this Agreement and has been taken into account in each Party’s decision to enter into this Agreement.
5.1 Mutual Warranties. Each Party represents and warrants that it has the full right, power, legal capacity, and authority to enter into this Agreement. Any agency executing this Agreement on behalf of its Advertiser represents and warrants that it has the authority to bind its Advertiser to the terms stated herein and remains jointly and severally liable for all obligations under this Agreement.
- Limitations of Warranties and Liability.
6.1 THE SERVICE PROVIDED BY MEDIA COMPANY, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MEDIA COMPANY MAKES NO 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, EXCEPT AS EXPRESSLY SET FORTH HEREIN, MEDIA COMPANY DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. MEDIA COMPANY DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. MEDIA COMPANY DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON MEDIA COMPANY’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND MEDIA COMPANY IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. MEDIA COMPANY WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.
6.2 EXCEPT FOR ANY THIRD PARTY INDEMNITY CLAIMS, NEITHER PARTY SHALL BE LIABLE FOR ANY PUNITIVE DAMAGES OR INDIRECT OR CONSEQUENTIAL LOSS, DAMAGE, COSTS OR EXPENSE OF ANY KIND WHATSOEVER AND HOWSOEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING, (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THEIR POSSIBILITY EXCEPT IF SUCH LOSSES ARE THE RESULT OF FRAUD ON THE PARTY OF MEDIA COMPANY. IN ANY EVENT, MEDIA COMPANY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS PAID TO IT IN THE ONE (1) MONTH PRIOR TO ADVERTISER NOTIFYING MEDIA COMPANY OF A DISPUTE.
6.3 The Provisions of this Section 6 are an essential element of the benefit of the bargain reflected in this Agreement.
- Proprietary Matters.
7.1 For the purposes of this Agreement, “Confidential Information” includes, without limitation, the terms of this Agreement (including pricing) and information regarding existing or contemplated service, products, processes, techniques, or know-how, or any information or data developed pursuant to the performance of the services. Each Party may use Confidential Information received from the other Party only in connection with and to further the purposes of this Agreement and may only provide such Confidential Information to its respective directors, employees and advisors who have a “need to know” such Confidential Information and who are obligated to honor, the terms of this Agreement. The fact that Confidential Information does not carry a proprietary legend, or is transmitted orally, shall not act as a waiver to deprive such information from protection under this Agreement.
7.2 Section 7(a) shall not apply to information which belongs to the Receiving Party or is: (i) already known by the Receiving Party; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) lawfully received from a third party without restriction on use or disclosure if, to the Receiving Party’s knowledge, such third party had the legal right to disclose such information; or (iv) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. In addition a Party may disclose Confidential Information hereunder if pre-approved in writing by the other Party for disclosure, or if disclosure is required by law, governmental agency or rule, or court order, so long as the Party required to disclose the information provides the other Party with timely prior notice of such requirement.
7.3 Upon completion or termination of this Agreement or the written request of the Disclosing Party at any time, the Receiving Party shall, within five (5) business days from such completion, termination or request, return all copies of Confidential Information to the Disclosing Party or certify, if so requested, in writing that all copies of Confidential Information have been destroyed; except for material reasonably required to be maintained by counsel. A Receiving Party may return Confidential Information, or any part thereof, to the Disclosing Party at any time.
7.4 The parties agree and understand that a material breach of this Section 7 may cause the non-breaching Party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching Party will, in addition to all other remedies, may be entitled to preliminary and permanent injunctive relief without the necessity of showing any actual damage or posting a bond. The foregoing remedy is a material, bargained for basis of this Agreement and has been taken into account in each Party’s decision to enter into this Agreement.
- Dispute Resolution.
8.1 This Agreement shall be governed by the laws of the United States and the State of Media Company’s primary office without respect to choice of law rules. The Parties consent to have all disputes regarding this agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division. The parties agree to conduct the arbitration in the county of Media Company principle office and each Party shall bear the costs of such arbitration. 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. This provision was a bargained for relinquishment of each Party’s rights to jurisdiction in their respective states or countries. The Parties waive the personal service of any process upon them and agree that service may be completed by overnight mail (using a commercially recognized service) or by U.S. mail with delivery receipt to the address stated in this Agreement. Media Company shall be entitled to recover all reasonable costs of collection (including attorney’s fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser. The prevailing Party in any Arbitration shall be entitled to an award of attorney fees and costs for such arbitration.
9.1 Each Party agrees to indemnify, defend and hold harmless the other Party, its Affiliates and its and their respective directors, officers, members, employees, agents and partners from and against any and all out-of-pocket liabilities, damages, losses and expenses, including reasonable attorneys’ fee, arising out of or related to a third-party claim or proceeding to the extent it is based upon an allegation that, if true, would constitute a breach of the indemnifying Party’s representations and warranties in this Agreement. The indemnifying Party’s indemnification obligations are conditioned upon the indemnified Party: (i) giving prompt notice to the indemnifying Party of the claim or action; (ii) granting to the indemnifying Party sole control of the defense or settlement of the claim or action (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to impose a material obligation upon, or materially prejudice or detrimentally impact, the indemnified Party in any way); and (iii) providing reasonable cooperation and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the claim or action. Any settlement of a claim will require both Parties written approval.
10.1 All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given at the time such communication is sent by registered or certified mail (return receipt requested), or recognized national overnight courier service, or delivered personally, to the following addresses (or at such other address for a Party as shall be specified by like notice): If to Media Company, to the attention of the 7040 Avenida Encinas, Suite 104-701, Carlsbad CA 92011. If to Advertiser, to the person listed as the contact person and at the address listed on the applicable initial IO or in the absence of an IO, to any address posted on Advertiser’s website or any publicly posted address of the Advertiser.
- Independent Contractors.
11.1 Each Party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as set forth herein, neither Party is authorized or empowered to obligate the other or to incur any costs on behalf of the other without the other Party’s prior written consent.
- Entire Agreement, Modification, Assignment.
12.1 This Agreement and exhibits or addendum thereto constitutes a valid and binding agreement between the Parties and has been duly executed by an authorized representative of each Party. This Agreement and any exhibits or addenda thereto is intended to be the parties’ complete, integrated expression of the terms of their agreement and any prior agreements or understandings with respect to such subject matters are superseded hereby and fully merged herein, and may only be modified in writing by authorized representatives of the parties. The terms and conditions hereof shall prevail exclusively over any written instrument or Insertion Order submitted by Advertiser even if signed by Media Company unless this Agreement is expressly amended by an addendum attached hereto that references this Agreement and the specific provisions to be modified. No interlineations to this Agreement shall be binding unless signed by both parties. In the event that a Party is required to digitally sign or agree to additional terms when using the other’s website, or the Advertiser’s tracking platform, the parties acknowledge and agree that such digital agreement is inconsequential and in no way binding; that it is the result of a technical requirement, which cannot be altered, in order to view stats and access Advertising Content. Therefore, any terms which appear on the other’s online advertising network or website are to be disregarded and deemed non-effective and shall be superseded by this Agreement. Neither Party may assign this Agreement without express written permission of the other Party.
- Remedies, Waiver.
13.1 Except as otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity. Failure of either Party to require strict performance by the other Party of any provision shall not affect the first Party’s right to require strict performance thereafter. Waiver by either Party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
ELECTRONIC SIGNATURES. Client acknowledges and agrees that by clicking on the button labeled “Agree” or such similar links as may be designated by Prime Media to accept the terms and conditions of this Agreement, Client is submitting a legally binding electronic signature and is entering into a legally binding contract. Client acknowledges that its electronic submissions constitute its Agreement and intent to be bound by this Agreement and all terms contained therein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (“E-Sign Act”) or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY MEDIA COMPANY. Further, Client hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.