Effective Date: December 19, 2011
This Master Advertising Agreement (“Agreement”) is entered into by and between PFS Marketing (“PFS”) and the Advertiser (as set forth in an applicable Insertion Order), each of which is referred to herein separately as a “party” and jointly as the “parties”. PFS and Advertiser, desiring to enter into a legally binding contract, do hereby agree as follows:
This Agreement, along with the accompanying and subsequent insertion orders (each, an “Insertion Order”) shall define the parties’ obligations and liabilities with respect to PFS’s delivery or display of advertising campaigns and promotions on Advertiser’s behalf (each, a “Campaign” and collectively, the “Campaigns”). This Agreement is a material part of each and every Insertion Order now or hereafter executed between the parties. In the event of a conflict between this Agreement and any Insertion Order, the terms of this Agreement shall control.
2. Advertiser’s Campaign
Creative Materials: Advertiser shall provide all creative and substantive materials required for marketing the Campaigns, including but not limited to: web pages, emails, banners, interstitials, links, and keywords (“Creative”). To the extent PFS provides assistance in the development of Creative, such assistance shall be limited to creative assistance. Advertiser is solely responsible and liable for the Campaigns, any and all material to which consumers can link through the Campaigns, and any and all Creative utilized for marketing the Campaigns, even if PFS developed or assisted in the development of a Campaign or Creative. In the event PFS develops, or assists in the development of a Campaign or Creative (“Custom Creative”), Advertiser may only use the Custom Creative for incorporation into PFS’s network. Advertiser may not use the Custom Creative for placement with any other publisher or affiliate network without prior written authorization from PFS.
Advertiser agrees to allow PFS to make changes or alterations to the Creative for the sole purpose and intent of matching it to the medium of delivery. Advertiser agrees to confirm the correct function of all Creative supplied to PFS. If no confirmation is received, PFS will assume that the Creative is functioning properly and Advertiser agrees to pay for all Actions (as defined below) derived from such Creative. Advertiser hereby grants to PFS and its third party publishers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaign(s) and related Creative in connection with its obligations hereunder.
Actions: For purposes of this Agreement, “Action” means an act or event by a third party upon which payment by Advertiser to PFS is based, as set forth in the Insertion Order. Advertiser must report any and all rejected Actions (including, but not limited to, Actions that are allegedly fraudulent, invalid, incomplete or duplicative) to PFS within forty-eight (48) hours of delivery, along with the reason(s) for the rejection(s) and commercially reasonable data supporting the reason(s) for the rejection(s). PFS will make a good faith determination based upon the data available to PFS and the data provided by Advertiser as to the validity of the rejected Actions, and its determination shall be final and binding. PFS is not liable for any discrepancies or rejections not reported within this time frame and Advertiser waives all right, title and interest to dispute payment to PFS based upon any Action not reported within this time frame. Actions generated during the term of the Campaign, although sent to Advertiser after the Campaign has ended, are included in the Campaign and will be billed accordingly. In the event Advertiser sells, transfers, or otherwise uses an Action or any portion of an Action that it rejected, Advertiser will pay the fee set forth in the applicable Insertion Order for such Action. In the event there is a shortfall in Actions as of the stop date, PFS may provide as Advertiser’s sole remedy, “make good” Actions until the number of Actions stated in the Insertion Order is achieved. Advertiser acknowledges that the data purchased is for persons who may have elected to register with PFS and/or its affiliated publishers, in which case PFS and/or its third party publishers retain all rights to market and communicate to such persons, consistent with their policies and procedures.
Delivery of Campaigns: Without limiting the generality of the foregoing, PFS expressly reserves the right to, upon notice to Advertiser: (i) refuse any advertising request, cancel any Campaign, and/or change any Campaign or Creative that does not completely conform to every material detail, instruction, method, and guideline set forth in the Insertion Order; (ii) refuse any Creative that does not arrive forty-eight (48) hours prior to the start date; (iii) refuse or cancel the use of any Campaign or Creative that it deems, in its reasonable discretion, inappropriate or unlawful; or (iv) refuse at any time to publish or transmit any copy, photograph or illustration of any kind for any reason including those that it believes, in its reasonable discretion, are an invasion of privacy, degrading, libelous, unlawful, profane, obscene, pornographic, tend to ridicule or embarrass, are in bad taste, or which in its reasonable discretion infringe upon any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any third party.
Advertiser shall ensure that each Creative that may be distributed via email contains: (i) a clear and conspicuous identification that the message is an advertisement; (ii) a valid, physical postal address for the “sender”, as the term is defined in the CAN-SPAM Act of 2003 (“Sender”); (iii) an Internet-based opt-out mechanism for the Sender that functions for at least thirty (30) days after the email transmission; and (iv) when provided, accurate “Subject” and “From” lines that are not deceptive or misleading. Advertiser shall ensure that the Sender: (i) allows consumers to opt-out without requiring payment, information beyond a consumer’s email address, or any other obligation as a condition for accepting or honoring a consumer’s opt-out request, including but not limited to requiring a consumer to visit more than a single Internet web page; (ii) honors all opt-out requests within ten (10) business days of receipt of the request; and (iii) does not sell, lease, exchange, or otherwise transfer or release any email address for which it has received an opt-out request for any purpose other than compliance with the CAN-SPAM Act of 2003 or other provision of law. Advertiser shall maintain a master suppression list that includes the email addresses of all users that have activated the Sender’s unsubscribe link or otherwise asked to be removed from the Sender’s email list. Advertiser shall provide such master suppression list to PFS on a basis necessary to comply with applicable law in the format specified by PFS so that PFS and its affiliates may sync up their own suppression lists against the Sender’s suppression list.
Advertiser’s Website: Advertiser shall make commercially reasonable efforts to keep Advertiser’s website(s) generally available 24 hours a day, seven (7) days a week, and not listed on any spam-blocking databases, in order to ensure that Actions may be properly processed. Advertiser shall make reasonable efforts to notify PFS at least two (2) days in advance for any scheduled downtime so that PFS has adequate time to notify the publishers who are actively engaged in running the applicable Campaigns. In the event of unscheduled downtime, PFS reserves the right, in its reasonable discretion, to recommend to the publishers, and otherwise effectuate, the redirection of traffic away from Advertiser’s website during any period in which it is not available.
Tracking/Hosting: Advertiser acknowledges that, except as otherwise agreed in an Insertion Order signed by an authorized representative of PFS, PFS will host the Campaign and provide the tracking solution. Where PFS agrees to use Advertiser’s tracking solution, Advertiser shall provide a login where PFS can retrieve reports reflecting the exact number of Actions delivered. The frequency and substance of the reports shall be mutually agreed to by the parties, but in no event shall reports be provided less frequently than weekly. If Advertiser does not have online reporting available, Advertiser must provide such reports manually to PFS via email, arranged by Campaign. The frequency and substance of the manual reports shall be mutually determined by the parties. In addition to the ongoing requirement to provide online or manual reports, Advertiser agrees to provide a report upon PFS’s request. PFS reserves the right to bill Advertiser based on the higher of the parties’ tracking counts. If the tracking code is removed, Advertiser manipulates the tracking code, or Advertiser experiences technical issues that impair Campaign performance, including but not limited to inoperable links or servers or connectivity problems, PFS may suspend performance and Advertiser agrees to pay PFS for the days during which tracking code was removed or manipulated or Campaign performance was impaired, based on the higher of PFS’s tracking counts or 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 or the commencement of the impairment).
For all payments to PFS, Advertiser shall pay PFS within the number of days set forth in the applicable Insertion Order or, if no number is set forth in the Insertion Order, within fifteen (15) days after the end of the calendar month in which the Actions were delivered. In the event of a dispute regarding amounts due, Advertiser agrees that the higher of the parties’ tracking counts shall control. Only invoices sent directly to Advertiser by PFS are to be construed as representative of billable amounts. In the event PFS does not receive a written notification of a disputed bill, with rationale and support specifically set forth therein, within fifteen (15) days from the date of the invoice, such invoice will be deemed valid and payable and may not thereafter be disputed. Any late payments will accrue interest equal to the lesser of one percent (1%) per month or the maximum amount allowable under law, compounded monthly. Where payment is made by credit card, Advertiser expressly agrees not to charge back any amounts billed. Any and all transaction or processing fees imposed upon PFS by a credit card company or Advertiser’s bank will be passed through to Advertiser. PFS shall be entitled to recover all reasonable costs of collection (including agency fees and attorneys’ fees) incurred in attempting to collect payment from Advertiser. Advertiser shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement except for income taxes.
Advertiser shall be obligated to retain books and records pertaining to payment calculation for at least one (1) year after the conclusion of each Campaign. PFS shall have the right to audit such books and records, and shall give Advertiser reasonable notice of its request to conduct an audit. If pursuant to such audit, PFS discovers an underpayment of more than 3%, Advertiser shall be obligated to pay to PFS, together with the amount of the underpayment and late fees, PFS’s reasonable audit costs.
4. Advertiser Representations and Warranties
5. Mutual Warranties
Each party represents and warrants to the other party that: (i) the signatory has the full right and authority to bind such party; (ii) it has the full corporate or organizational right, power and authority to enter into this Agreement and to perform the acts required of it; (iii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, or any applicable law, rule or regulation; and (iv) each party shall render all services to the other party in a professional and commercially reasonable manner, in accordance with generally accepted industry standards.
Advertiser agrees to indemnify, defend and hold harmless PFS, its parents, successors, subsidiaries, and affiliates, and their respective directors, officers, agents and employees (the “PFS Indemnified Parties”) for any claims, liabilities, costs and expenses (including reasonable attorneys’ fees) made against the PFS Indemnified Parties by a third party or parties or a government agency as a result of: (i) any actual or alleged breach of the terms of this Agreement; (ii) the marketing, sale or license of Advertiser’s goods or services; (iii) any actual or alleged violation of an applicable law, rule, or regulation by Advertiser; or (iv) any other act, omission or misrepresentation by Advertiser.
PFS agrees to indemnify, defend and hold harmless Advertiser, its parents, successors, and subsidiaries, and their respective directors, officers, and employees (the “Advertiser Indemnified Parties”) for any claims, liabilities, costs and expenses (including reasonable attorneys’ fees) made against the Advertiser Indemnified Parties by a third party or parties as a result of acts of gross negligence or willful misconduct by PFS. The indemnifying party may participate in the defense of the indemnified party at its own expense.
7. Limitations of Warranties and Liability
THE ADVERTISING SERVICE PROVIDED BY PFS, THE USE OF THE SERVICE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PFS 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. PFS DOES NOT WARRANT OR GUARANTEE ACTION QUALITY, THE LEGALITY OF ANY CAMPAIGN, CREATIVE OR CUSTOM CREATIVE, CAMPAIGN PERFORMANCE, CONVERSION RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. PFS DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE, OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON PFS’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND PFS IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. PFS WILL MAKE EVERY EFFORT TO MEET SCHEDULED FLIGHT AND DELIVERY DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. ADVERTISER IS SOLELY RESPONSIBLE FOR COMPLYING WITH THE REQUIREMENTS OF ITS VENDORS AND SERVICE PROVIDERS, INCLUDING BUT NOT LIMITED TO EMAIL SERVICE PROVIDERS AND CALL FLOORS, AND PFS MAKES NO WARRANTIES OR GUARANTEES WITH RESPECT TO THE DELIVERABILITY OR PERFORMANCE OF THE DATA PROVIDED TO SUCH VENDORS AND SERVICE PROVIDERS.
IN NO EVENT SHALL PFS BE LIABLE FOR ANY SPECIAL, PUNITIVE, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOSS OF OR CORRUPTION TO DATA, OR LOST PROFITS (EVEN IF PFS WAS ADVISED OF THE POSSIBLITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL PFS BE LIABLE TO ADVERTISER OR ANY THIRD PARTY FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY PFS HEREUNDER.
8. Term & Termination
This Agreement applies to the parties for as long as PFS provides advertising services for Advertiser. Either party may terminate this Agreement upon two (2) business days prior written notice to the other party. Termination of this Agreement shall not relieve Advertiser from its obligation to pay any fees that have accrued prior to the date of termination and any fees/Actions that result from advertising placed, sent or disseminated by PFS or its affiliates prior to termination for the following thirty (30) days after termination. Notwithstanding the foregoing, PFS reserves the right to suspend and/or terminate this Agreement immediately in the event that Advertiser violates any term set forth in this Agreement.
The terms of this Agreement and any information that is either identified by a party as confidential at the time of disclosure or should be understood by a reasonable person under the circumstances to be confidential in nature shall be deemed to be that disclosing party’s confidential information. Without limiting the generality of the foregoing, confidential information shall include: records, files, data, methods, trade names, formulae, product information, customer lists, trade secrets, sales lists, plans, specifications, price lists, the identities of PFS’s affiliates or publishers and their corresponding websites and payouts, and other similar information which is proprietary in nature. Neither party shall at any time disclose any of the terms of this Agreement, or any information shared pursuant hereto, to any third party except to the legal and professional advisors of either party, investors or financing sources, or as may be required by applicable law. The foregoing confidentiality provisions shall not apply where the receiving party can demonstrate that the information: (i) was previously known to the receiving party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the receiving party; (iii) was rightfully received from a third party who was not bound under any confidentiality provisions; (iv) was disclosed pursuant to judicial order, requirement or request of a governmental agency or by operation of law; or (v) is independently developed by a party without use of or reliance upon the disclosing party’s confidential information. The parties agree that monetary damages for breach of these restrictive covenants may not be adequate and that the non-breaching party shall be further entitled to seek injunctive relief without the necessity of posting a bond or other security.
10. Entire Agreement; Modification
This Agreement represents the entire agreement between the parties hereto and supersedes all prior agreements, whether written, oral, express, or implied, of the parties with respect to the matters set forth herein. This Agreement may not be amended except in writing by authorized representatives of both parties. No online or click-through terms, conditions, policies or documents (“Online Terms & Conditions”) shall be deemed to have modified this Agreement, notwithstanding the fact that a party may have affirmatively accepted such terms as a condition of accessing any online service. Such Online Terms & Conditions are procedural only for the parties to establish each other in their respective administrative interfaces or to access reports or account information. As such, the terms of each party’s participation will be governed by this Agreement and the applicable Insertion Orders.
This Agreement shall be governed by the laws of the State of New York without respect to choice of law rules. The parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Suffolk County, New York for all matters arising from or relating to this Agreement. Any claim under this Agreement, other than for indemnity and defense as provided herein, must be filed within one (1) year of the time such claim arose, regardless of any law to the contrary, otherwise such claim will be forever barred. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given at the time such communication is delivered personally, or by registered or certified mail (return receipt requested) or recognized national overnight courier service, or at the time delivery is refused, to the addresses set forth on the most recent Insertion Order. Neither party may assign this Agreement without the express prior written consent of the other party. Notwithstanding the foregoing, consent of the other party shall not be required for assignment or transfer made by (a) operation of law, or (b) to an entity that acquires substantially all of the party’s stock, assets or business. Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. 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. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening, including but not limited to Sections 3-7 and 9-11. In the event any portion of this Agreement shall be declared invalid by any court of competent jurisdiction, such portion shall be severed from this Agreement and the remaining parts hereof shall remain in full force and effect.