“Sparcmedia Pty Ltd (“Sparcmedia”) shall perform services for Advertiser or, if applicable, Agency on behalf of Advertiser, (collectively “Customer”) pursuant to one or more Insertion Orders (in both the singular and plural “I/O”) incorporating these Standard Terms and Conditions (“T&C’s”). Capitalized terms not defined herein shall have the same meaning given to such terms in the I/O.
I. SPARCMEDIA SERVICES
This agreement, in conjunction with the corresponding Insertion Order, shall constitute Advertiser’s, its clients’ and agents’ (herein collectively referred to as “Advertiser”) understanding that Sparcmedia’s sole obligation is to promote the Advertiser’s product or services by showing banners (“Creative”) provided by the Advertiser on site(s) across the Sparcmedia Network (the “Agreement”). The submission of a signed Insertion Order by Advertiser to Sparcmedia is construed as an acceptance of all the rates, terms and conditions under which advertising is sold at that time. Any and all modifications to this Insertion Order are invalid unless acknowledged and accepted in writing by both Sparcmedia and the Advertiser. Advertiser agrees that Sparcmedia may, but is not obligated to, display Creative across the entire Sparcmedia advertising network or on specific site(s) and that daily Campaign activity begins at 12:01 AM Eastern Standard Time. Sparcmedia may, at its option, modify the flight date of a Campaign(s) if the creative or linking URL’s: are not delivered on time, there are delays due to 3rd party ad-serving, inventory fluctuation or other issues. All rates quoted herein, orally, or through written communications are only valid fourteen (14) days from date of such statement. If no agreement is reached within this time frame Sparcmedia reserves the right to change rates.
II. DELIVERY MEASUREMENT STANDARDS
a. Sparcmedia will use commercially reasonable efforts to deliver the impressions stated in the Insertion Order in accordance with this Agreement and will use commercially reasonable efforts to deliver the impressions starting with the start date and ending with the end date set forth in this Insertion Order, and will make commercially reasonable efforts to spread such impressions evenly throughout the term of the Agreement unless otherwise instructed by Advertiser.
b. Unless otherwise agreed upon in writing, all invoices created by Sparcmedia for work performed and delivered shall be in accordance with measurement and tracking performed by Sparcmedia. Sparcmedia has adopted the IAB’s (Internet Advertising Bureau, http://www.iabaustralia.co.au) methodology for measuring impressions. Using this methodology, impression delivery guarantees will be considered “met” when the impressions reported by Sparcmedia meet an Advertiser’s or representative agency’s insertion order.
c.In the event that Sparcmedia has agreed to use Advertiser’s third-party measurements for billing purposes, Advertiser expressly acknowledges that Sparcmedia may use and consider Advertiser’s third-party measurements via their online reporting systems, or email confirmations from Advertiser’s representatives as a valid, accurate, and a final measurement of their campaign. Advertiser agrees that it will not dispute their third-party login data or data transmitted via email to Sparcmedia.
III. PAYMENT, CREDIT, AND CANCELLATION TERMS
a. All invoices created by Sparcmedia for work performed and delivered to the Advertiser shall be based on Sparcmedia’s measurements and shall be in accordance with measurement andtracking described in the “Delivery Measurement Standards” section. In addition, all payments will be based upon Sparcmedia’s measurements and not based upon Advertiser, its clients, its agents or any third party’s measurements.
b. All payments will be made in advance unless agreed upon otherwise or credit is approved and Sparcmedia is under no obligation to perform agreed upon services until payment is received. Upon approved credit, terms are Net 30 from date of invoice.
c. It is the Advertisers responsibility to validate all impressions, and/or clicks. The Advertiser must report any discrepancies related to their campaign to Sparcmedia within fifteen (15) days of the occurrence. Sparcmedia is not liable for any discrepancies not reported within this time frame and Advertiser waives all right, title, and intent to dispute payment to Sparcmedia based upon any discrepancy not reported within this time frame. All discrepancies must be reported to Sparcmedia at accounts.au@Sparcmedia.com.
d. Either party may cancel this Agreement upon providing two (2) weeks written notice via email, fax or Australian Mail. If Advertiser terminates campaign early, payment in full for work performed and delivered up to the modified cancellation date will be owed and due and payable in full.
e. If Advertiser fails to pay overdue invoices for previous campaigns, Sparcmedia reserves the right to immediately terminate any active campaigns.
f. In the event Advertiser pays with credit card, Advertiser expressly agrees not to charge back on credit card account. Advertiser agrees to follow dispute resolution agreement as specified in section 10 and 3 herein.
g. All payments must be made in Australian funds, unless otherwise agreed upfront. Advertiser understands and agrees that in no event, and under no circumstance will data provided by any Sparcmedia representative constitute final billing numbers. Only Invoices emailed directly to Advertisers and Agencies are to be construed as representative of billable amounts.
h. Advertiser agrees that all cancellation notices must be submitted via e-mail and must include a CC: to accounts.au@Sparcmedia.com. All requests must be copied to this e-mail address to be considered valid. Furthermore, cancellation requests not copied to this address will not be considered valid and the Advertiser will be liable for all payments due.
i. In the event that Sparcmedia has agreed to use Advertiser’s third-party measurements for billing purposes, Advertiser expressly acknowledges that Sparcmedia may use and consider Advertiser’s third- party measurements via their online reporting systems, or email confirmations from Advertiser’s representatives as a valid, accurate, and a final measurement of their campaign. Advertiser agrees that it will not dispute their third-party login data or data transmitted via email to Sparcmedia.
j. Sparcmedia agrees to stop the Advertisers campaign temporarily (“Pause”) with a written request from the Advertiser. If Advertiser wishes to terminate the campaign early, Advertiser agrees to abide by the cancellation procedures set forth within these Terms and Conditions. Any cancellation notice will be based on the date the written notice was received by Sparcmedia. Sparcmedia will not accept the Pause period as a part of cancellation. If Advertiser cancels campaign during Pause period Advertiser agrees to pay for any leads, impressions, or clicks, delivered during the remaining cancellation notice period, based on daily averages prior to Pause.
IV. CREATIVE STANDARDS
a. All advertisements are subject to Sparcmedia’s approval. Sparcmedia reserves the right to reject, discontinue, or omit any Creative or any part thereof. This right shall not be deemed to have been waived by acceptance or actual use of any Creative. Sparcmedia may reject any Creative that Sparcmedia feels is not in keeping with reasonable standards outlined herein. Sparcmedia is not liable for errors in Creative position and/or placement, or typographic errors of any kind.
b. If Advertiser intends to provide Sparcmedia with Creative via 3rd party tags, Advertiser agrees to provide Sparcmedia with a sample of each and all advertisements contained within the 3rd party tags. Failure to do so will be deemed a breach of this Agreement. In the event Sparcmedia’s relationship with its publishers is damaged or lost as a result of a breach of this condition, Sparcmedia reserves the right to recover any and all monetary damages.
c. Advertiser agrees to login to their Sparcmedia account and confirm correct function of all creative supplied to Sparcmedia within twenty-four (24) hours of campaign start. If no confirmation is received within this time frame, Sparcmedia will assume that creative is functioning properly and Advertiser agrees to pay for all impressions and clicks derived from the creative as measured by Sparcmedia. All problems related to creative should be immediately brought to the attention of Advertiser’s Sparcmedia account executive.
d. Advertiser agrees and understands that if Sparcmedia is requested to retrieve creative for and on behalf of Advertise that Sparcmedia performs this service solely as a courtesy to Advertiser, and as such Sparcmedia will not be liable for any errors, including but not limited to retrieving incorrect creative. Furthermore, Advertiser agrees to pay for all campaigns delivered for and on behalf of Advertiser, as defined in the insertion order, where Sparcmedia was requested to obtain creative from a location provided by the Advertiser.
V. LIMITATION OF LIABILITIES
Sparcmedia shall not have any liability to the advertiser for lost profits or other consequential, special, indirect or incidental damages, based upon a claim of any type or nature (including, but not limited to, contract, tort, including negligence, warranty or strict liability), even if advised of the possibility of such damages. In any event Sparcmedia shall not have any liability to the advertiser for lost profits or other consequential, special, indirect or incidental damages, based upon a claim of any type or nature (including, but not limited to, contract, tort, including negligence, warranty or strict liability), even if advised of the possibility of such damages. In any event Sparcmedia’s total obligations and/or liability can never exceed the charge for the advertisement in question. Except as expressly set forth herein, Sparcmedia makes no other warranties to advertiser and disclaims all warranties of merchantability or fitness for a particular purpose’s total obligations and/or liability can never exceed the charge for the advertisement in question except as expressly set forth herein, Sparcmedia makes no other warranties to advertiser and disclaims all warranties of merchantability or fitness for a particular purpose.
a. All Creative has been accepted and published upon the representation that the Advertiser is authorized to publish the entire contents and subject matter thereof. Advertiser agrees to indemnify and hold Sparcmedia, its Publishers or List Providers and their respective affiliates, employees, officers, agents, directors and representatives (“Sparcmedia Indemnified Parties” or “NIP”), harmless from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) indemnify, defend, and save Sparcmedia harmless from any and all liability for any claim or suits for libel, defamation, violation of rights of privacy, plagiarism, attorney’s fees, trademarks, copyright infringement, unauthorized content (including text, illustrations, representatives, sketches, maps, labels, or other copyrighted matter) contained in Creative or the unauthorized use of any person’s name or photograph, arising from Sparcmedia reproduction and publishing of such Creative pursuant to Advertiser’s submission.
b. Advertiser understands that Sparcmedia in due diligence cannot monitor all Sparcmedia Partner sites for appropriate content and Sparcmedia may not be held responsible for the content of any Partner site. If Advertiser reasonably determines that the placement of any advertisement by Sparcmedia hereunder harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, including, but not limited to association withwebsites that contain indecent, illegal, misleading, harmful, abusive, harassing, libellous, defamatory, or other offensive materials, then Sparcmedia shall use commercially reasonable efforts to remove such advertisement promptly following Advertiser’s notice thereof to Sparcmedia; provided, however, that if Sparcmedia reasonably believes that removal of an advertisement from a site will have a material impact on Sparcmedia’s ability to deliver advertisements in accordance with the Insertion Order, Sparcmedia may condition such compliance on Advertiser providing an extension of the flight dates.
c. Advertiser guarantees that data regarding consumers gained by this campaign will be only used for legal purposes and Advertiser will indemnify, defend and hold harmless the Sparcmedia Indemnified Parties from any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorney’s fees) Losses which result from any claim of damages brought or sought against Sparcmedia NIP that alleges consumer data gained by this campaign was used for any purpose in violation of any applicable laws. The indemnity obligations of this paragraph are contingent on NIP Sparcmedia giving prompt written notice of any such claim. NIP Sparcmedia will have sole control over the litigation or settlement of such claim. The provisions of this Paragraph shall survive the termination of this Agreement.
VII. FORCE MAJEURE
Sparcmedia is not 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 Sparcmedia’s control affecting production or delivery in any manner.
Parties have disclosed or may disclose to each other information relating to each party’s business (including, without limitation, data and other information pertaining to publisher sites, affiliates and vendors that are or have been part of the Sparcmedia Network), all of which to the extent previously, presently or subsequently disclosed to each other is “Proprietary Information.” Proprietary Information does not include information that each party can document (a) is or becomes (through no improper action or inaction of each party or its Representatives (as defined below)) generally known by the public, (b) was in its possession or known by it without restriction prior to receipt from the other party or (c) becomes available to a party from a source other than the other party or its Representatives having no obligation of confidentiality. (“Representatives,” when used with respect to either party, means that party’s affiliates, agents, officers, directors, consultants and employees). Parties agree (i) to hold Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions each party employs with respect to its most confidential materials), (ii) not to make any use whatsoever at any time of such Proprietary Information, except for the purpose of evaluating the results of Advertiser’s advertising campaign, (iii) not to copy any Proprietary Information for any purpose whatsoever without written permission from each party, and (iv) not to divulge any Proprietary Information or any information derived therefrom to any third party or employee, except those of each party’s employees who have a legitimate “need to know” and are bound in writing to the restrictions herein. Each party will be responsible for a breach of this Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Proprietary Information and will cooperate with the other party in every reasonable way to help regain possession of such Proprietary Information and prevent its future unauthorized use.
IX. PROPRIETARY RELATIONSHIPS
Sparcmedia has proprietary relationships with the publishers that make up the Network. With the exception of reasonably documented, pre-existing relationships with direct publishers or networks or relationships entered into in the ordinary course of Advertisers business, Advertiser agrees not to solicit, induce, recruit or encourage, directly or indirectly, any publisher that the Advertiser knows, or has reason to know, is a publisher on the Network for the purpose of offering to such publisher products or services that compete with those of Sparcmedia, including, without limitation, the placement or hosting of advertising in any form without the express, written consent of Sparcmedia. Advertiser understands that in the event of a breach of the forgoing representations by Advertiser, Sparcmedia shall be entitled to injunctive or other equitable relief as a remedy therefore, without the necessity of posting a bond with respect thereto. Any such relief awarded shall be in addition to any appropriate relief which may be awarded in the form of monetary damages, and Sparcmedia shall be entitled to monetary damages to the fullest permitted under applicable law. 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.
X. CHOICE OF LAW AND VENUE
It is agreed that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be exclusively governed by Australian law without respect to conflict of law provisions. The parties further agree to submit to personal jurisdiction in the courts of NSW (Australia) as such courts shall serve as the exclusive venue for all dispute resolution. The prevailing party of any litigated dispute arising out of or relating in any way to this Agreement shall receive its reasonable attorneys’ fees, together with its costs and expenses incurred resolving the dispute as part of the judgment.
XI. ENTIRE AGREEMENT
a. This Agreement, together with the Insertion Order(s) incorporated by reference, embodies our entire agreement, supersedes all prior oral and written agreements, and may not be amended or modified except by a writing acknowledged and accepted by both parties. This Agreement may be executed in any number of counterparts and facsimile copies, each of which shall be deemed an original, and all of which together shall be deemed one and the same instrument. In the event that any of the provisions included herein are held to be unenforceable, the remaining portions of the Agreement will remain in full force and effect. Any notice or report required or permitted by this Agreement shall be made by personal delivery or fax to then operating fax number or business address.
b. 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.
Paragraphs 5, 6, 8 and 10 shall survive in perpetuity after the termination of this agreement by either party; Paragraph 9 shall survive for six (6) months from such termination.
Advertiser hereby authorizes Sparcmedia to promote and distribute Advertiser’s campaign via any electronic media (including website placement, search listing, etc.) as Sparcmedia in its discretion deems appropriate to meet Advertiser’s performance objectives. Advertiser agrees to allow and/or assist Sparcmedia to alter, resize, or otherwise modify creative only as necessary for distribution through the various channels listed above.