Advertising Program Terms
By purchasing services or products or advertising you agree to the below terms and conditions.
These Advertising Program Terms (“Terms”) are entered into by, as applicable, the customer purchasing advertisement space or signing these Terms or any document that references these Terms or that accepts these Terms electronically. These Terms govern Customer’s participation in Ads’s advertising program(s) (“Program”) and, as applicable, any insertion orders or service agreements (“IO”) executed by and between the parties OMM and/or Customer’s online management of any advertising campaigns. These Terms and any applicable IO are collectively referred to as the “Agreement.” By submitting payment the Customer hereby agree and acknowledge:
2. Agency. Customer represents and warrants that (a) it is authorized to act on behalf of and has bound to this Agreement any third party for which Customer advertises (a “Principal”), (b) as between Principal and Customer, the Principal owns any rights to Program information in connection with those ads, and (c) Customer shall not disclose Principal’s Program information to any other party without Principal’s consent.
3. Indemnification. Customer shall indemnify and defend OMM, its Partners, agents, affiliates, and licensors from any third party claim or liability (collectively, “Liabilities”), arising out of Use, Customer’s Program use, Targets, Creative and Services and breach of the Agreement. Partners shall be deemed third party beneficiaries of the above Partner indemnity.
4. Prohibited Uses; License Grant; Representations and Warranties. Customer shall not, and shall not authorize any party to: (a) use any automated means or form of scraping or data extraction to access, query or otherwise collect advertising related information from any Program website or property except as expressly permitted; or (b) advertise anything illegal or engage in any illegal or fraudulent business practice. Customer represents and warrants that it holds and hereby grants all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in Creative, Services and Targets needed to operate Programs (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of Creative or Targets) in connection with this Agreement (“Use”). Customer represents and warrants that (c) all Customer information is complete, correct and current; and (d) any Use hereunder and Customer’s Creative, Targets, and Customer’s Services will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including without limitation intellectual property rights). Violation of the foregoing may result in immediate termination of this Agreement or customer’s account without notice and may subject Customer to legal penalties and consequences.
5. Disclaimer and Limitation of Liability. To the fullest extent permitted by law, DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. To the fullest extent permitted by law, disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) costs per click; (ii) click through rates; (iii) availability and delivery of any impressions, Creative, or Targets on any Partner Property, Property, or section thereof; (iv) clicks; (v) conversions or other results for any ads or Targets; (vi) the accuracy of Partner data (e.g. reach, size of audience, demographics or other purported characteristics of audience); and (vii) the adjacency or placement of ads within a Program. Customer understands that third parties may generate impressions or clicks on Customer’s ads for prohibited or improper purposes, and Customer accepts the risk of any such impressions and clicks. Customer’s exclusive remedy, and exclusive liability, for suspected invalid impressions or clicks is for Customer to make a claim for a refund in the form of advertising credits for Properties within the time period required under Section 7 below. Any refunds for suspected invalid impressions or clicks are within sole discretion. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION TO CUSTOMER’S BUSINESS) WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO OMM BY CUSTOMER FOR THE AD GIVING RISE TO THE CLAIM. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including without limitation to acts of God, government, terrorism, natural disaster, labor conditions and power failures.
6. Payment. Customer shall be responsible for all charges up to the amount of each IO, or as set in an online account, and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Unless agreed to by the parties in writing, Customer shall pay all charges in accordance with the payment terms in the applicable IO or Program FAQ. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Customer is responsible for paying (y) all taxes, government charges, and (z) reasonable expenses and attorneys fees incurred collecting late amounts. To the fullest extent permitted by law, Customer waives all claims relating to charges (including without limitation any claims for charges based on suspected invalid clicks). Charges are solely based on measurements for the applicable Program, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at discretion and only in the form of advertising credit for only Owned Ads Properties. Nothing in these Terms or an IO may obligate extension of credit to any party. Customer acknowledges and agrees that any credit card and related billing and payment information that Customer provides may be shared with companies who work on the behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment and servicing Customer’s account. OMM may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. OMM shall not be liable for any use or disclosure of such information by such third parties.
7. Miscellaneous. THE AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES JOINTLY WROTE IT AND GOVERNED BY ARIZONA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OMM PROGRAM(S) SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF PHOENIX, ARIZONA, USA, AND OMM AND CUSTOMER CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. The Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g. reference to a purchase order number) or oral discussions are void. Each party shall not disclose the terms or conditions of these Terms to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation. Customer may grant approvals, permissions, extensions and consents by email, but any modifications by Customer to the Agreement must be made in a writing executed by both parties. A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect. Customer may not assign any of its rights hereunder and any such attempt is void. OMM and Customer and OMM and Partners are not legal partners or agents, but are independent contractors. In the event that these Terms or a Program expire or is terminated, OMM shall not be obligated to return any materials to Customer. Notice to Customer may be effected by sending an email to the email address specified in Customer’s account, or by posting a message to Customer’s account interface, and is deemed received when sent (for email) or no more than 15 days after having been posted (for messages in Customer’s interface).
8. The Program. Customer is solely responsible for all: (a) ad targeting options and keywords (collectively “Targets”) and all ad content, ad information, and ad URLs (“Creative”), whether generated by or for Customer; and (b) web sites, services and landing pages which Creative links or directs viewers to, and advertised services and products (collectively “Services”). Customer shall protect any Customer passwords and takes full responsibility for Customer’s own, and third party, use of any Customer accounts. Customer authorizes and consents to all such placements. Customer agrees that all placements of Customer’s ads shall conclusively be deemed to have been approved by Customer. Customer grants permission to utilize an automated software program to retrieve and analyze websites associated with the Services for ad quality and serving purposes. Any Programs can be modified at any time without liability. These Terms may also be modified at any time without liability, and Customer’s use of the Program after notice that these Terms have changed constitutes Customer’s acceptance of the new Terms. Any ad may be rejected or removed for any or no reason.
9. Cancellation. Advertisements are pre-paid and may not be canceled except with written notice 3 days before the end of an ad cycle and prior to the renewal and beginning of a new ad cycle. The cancellation of all other advertising may be subject to Program policies or the ability to re-schedule reserved inventory. OMM may cancel immediately any IO, any of its Programs, or these Terms at any time with notice, in which case Customer will be responsible for any ads already run. All sections will survive any expiration or termination of this Agreement.