Thank you for choosing Armed Forces Communications, Inc. d.b.a. Refuel (“REFUEL”). REFUEL shall provide services in accordance with the specifications and instructions in the insertion order and the terms and conditions set forth herein all which are an integral part of any insertion order (together, the “Agreement”). The signing of this Agreement by REFUEL and Axis (“CLIENT”) as agent on behalf of Advertiserset forth in this Agreement is an acceptance of the Agreement. When signed by both parties, this Agreement is a legally binding document.
“Ad” means any advertisement provided by CLIENT on behalf of an Advertiser.
“Advertiser” means the advertiser for which CLIENT is the agent under an applicable IO.
“Advertising Materials” means artwork, copy, or active URLs for Ads.
“Advertising Services” provided by Refuel related to the creation, preparation, production or dissemination of advertisements.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
“CPC Deliverables” means Deliverables sold on a cost per click basis.
“CPL Deliverables” means Deliverables sold on a cost per lead basis.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“CTR” means Deliverables measure on a click through
“Custom Material” means any and all intellectual property, materials, content, ideas, copy, or information created by or on behalf of Refuel for Advertiser or Client.
“Deliverable” or “Deliverables” means the Advertising Services and inventory delivered by REFUEL (e.g., media planning, media buying, impressions, clicks, or other desired actions).
“IO” means a mutually agreed insertion order that incorporates these Terms, under which REFUEL will deliver Ads on Sites for the benefit of Advertiser.
“REFUEL Properties” are websites and/or media assets specified on an IO that are owned, operated, or controlled by REFUEL.
“Network Properties” means websites and/or media assets specified on an IO that are not owned, operated, or controlled by REFUEL, but on which REFUEL has a contractual right to serve Ads.
“Policies” means written advertising criteria or specifications made conspicuously available in advance to Client and Advertiser, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with REFUEL’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means REFUEL Properties and Network Properties.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, REFUEL, Client, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
1) INVENTORY AVAILABILITY
- a) IO Details: From time to time, REFUEL and Client may execute IOs that will be accepted as set forth herein. As applicable each IO will specify: (i) the type(s) and amount(s) of Deliverables; (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
- b) Availability; Acceptance. REFUEL will make commercially reasonable efforts to notify CLIENT within five (5) business days of receipt of an IO signed by CLIENT if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed upon the written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by REFUEL and CLIENT Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both REFUEL and CLIENT.
- c) Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
2) AD PLACEMENT AND POSITIONING
- a) Compliance with IO. REFUEL will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section 6(c), will create a reasonably balanced delivery schedule. REFUEL will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Client in writing.
- b) Changes to Site(s). REFUEL will use commercially reasonable efforts to provide CLIENT at least 10 business days prior notification of any material changes to any Site planned for inventory delivery that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as CLIENT’s and Advertiser’s sole remedy for such change, CLIENT may cancel the remainder of the affected placement without penalty within the 10-day notice period. If REFUEL has failed to provide such notification, CLIENT may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
- c) Mechanicals & Technical Specifications. REFUEL will submit or otherwise make electronically accessible to CLIENT final mechanical & technical specifications for any placements itemized herein within five (5) business days of the acceptance of an IO. Changes by REFUEL to the specifications of already-purchased Ads after that five (5) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that REFUEL resize the Ad at REFUEL’s cost, and with final creative approval of CLIENT, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
- d) Editorial Adjacencies. Refuel acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Refuel will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Refuel Properties, although Refuel will at all times retain editorial control over the Refuel Properties. For Ads shown on Network Properties, Refuel and Client agree that Refuel’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Client with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Refuel remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Client for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Client and Refuel will negotiate an alternate solution. After Client notifies Refuel that specific Ads are in violation of the Editorial Adjacency Guidelines, Refuel will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Client and Refuel will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Client and Refuel each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Client or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.
3) PAYMENT AND PAYMENT LIABILITY
- a) Invoices. The initial invoice from Refuel will be sent by REFUEL on the first of each month during the term of the IO, or agreed upon payment terms as otherwise stated on the IO. Invoices will be sent to CLIENT’s billing address as set forth on the IO and will include information reasonably specified by CLIENT, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO.. For the avoidance of doubt, Client will only be responsible for payment of invoices from Refuel (and not any invoices from Network Properties). Refuel will act as a clearinghouse for payments to Network Properties.
- b) Payment. All undisputed payments are due NET 30 Days, unless otherwise agreed upon in writing or in the IO. REFUEL agrees to hold Client liable for payments solely to the extent proceeds have cleared from Advertiser to Client for Ads placed in accordance with the IO. For sums not cleared to Client, REFUEL agrees to hold Advertiser solely liable. REFUEL understands that Advertiser is Client’s disclosed principal and Client, as agent, has no obligations relating to such payments, either joint or several, except as specifically set forth in this Section 3(b). Client agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis. Upon request, Client will make available to Refuel written confirmation of the relationship between Client and Advertiser. This confirmation should include, for example,Advertiser’s acknowledgement that Client is its agent and is authorized to act on its behalf in connection with the IO and these terms. In addition, upon the request of Refuel, Client will confirm whether Advertiser has paid to Client in advance funds sufficient to make payments pursuant to the IO.
- c) If any item on an invoice is disputed, Client shall, within ninety(90) days of receipt of the applicable invoice and Back-up Reporting (as defined below) from Refuel, notify REFUEL of the disputed item(s) in writing. Payment of the disputed portion of an invoice may be withheld until the dispute is resolved.
- d) All rates do not include any sales and/or use tax, which are the sole responsibility of the CLIENT solely to the extent such taxes are included as individual line items on the applicable invoice. The rates hereunder are not subject to any reduction for early payment, commissions or any other similar charges to any agent unless expressly provided for in this Agreement, and if so provided, such adjustments shall serve to reduce amounts invoiced by REFUEL hereunder
- e) All past due balances are subject to an interest charge at a rate of one and one-half (1 & 1/2%) percent per month.
f) REFUEL shall have the right to obtain reasonable credit information to determine Advertiser’s credit worthiness to REFUEL’s satisfaction. If requested by REFUEL, CLIENT shall provide all information that REFUEL may reasonably require to determine such credit worthiness. In the event Advertiser’s credit is or becomes impaired, then, in REFUEL’s sole determination REFUEL shall have the right to require payment in advance for the balance of services to be delivered.
4) REPORTING & PROOF OF PERFORMANCE
- a) Confirmation of Campaign Initiation. REFUEL will, provide confirmation to CLIENT, either electronically or in writing, stating whether the components of the IO have been initiated after the IO start date.Once REFUEL has provided the online or electronic report, it agrees that Client is entitled to reasonably rely on it, subject to provision of REFUEL’s invoice for such period.
Notwithstanding anything to the contrary herein:
(i) Within thirty (30) days following the end of each applicable quarter in which media has run pursuant to an IO, Refuel will provide Client with (i) for all media except digital media, copies of all invoices from all Sites (including stations for broadcast advertising) to Refuel for media placed pursuant to the applicable IO that show the total amount of media placed and fees incurred; (ii) for digital media, a detailed delivery report that itemizes impression delivery and cost/total investment by digital or social channel/tactic; and (iii) proof that all media pursuant to the IO has run (“Back Up Reporting”);
(ii) Within sixty (60) days following the end of each applicable quarter in which media has run pursuant to an IO, Refuel will provide Client with performance reports for all media run purchased pursuant to an IO;
(iii) Refuel will provide pre-log information for all broadcast media purchased pursuant to an IO on the Friday (or such other day as mutually agreed upon by the parties in writing)prior, to the start date of each media flight; and
(iv) Refuel will lead bi-weekly reporting calls with Client to review digital campaign results.
- b) Digital: If REFUEL is serving the campaign, REFUEL will make reporting available at least as agreed upon depending on monthly campaign spend and campaign objectives, either electronically or in writing, unless otherwise specified on the IO.
- i) Reports will be summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost where applicable, and other variables as may be defined on the IO (g., keywords)
- c) Out-Of-Home (“OOH”)
- i) Refuel Owned OOH:
(1) For College Out-of-Home, Proof of Performance will be given in combination of affidavits and photos of ad placement that together reflect between 65% and 75% of the total placement.
(2) For Elementary, Middle, and High School Out-of-Home, Proof of Performance will be given in combination of affidavits and photos of ad placement that together reflect a general sampling of the total placement.
(3) Such proof of performance shall be made available to the client by email or by means of a link to an online destination no later than 30 days after the end of the campaign.
- ii) Military OOH: Proof of performance shall consist of a sampling of location photos within 30 days of postdate.
iii) General Market OOH (including Hispanic-targeted OOH): Proof of performance shall consist of a sampling of location photos within 30 days of postdate.
- d) Print Advertising:
- i) Youth Publications: For College Print Advertising, Proof of Performance will be sent to the client within 15 days to 3 months after placement. Such proof of performance shall be made available to the client through “tears” or “e-tears” – physica newspaper or PDF scan of the ad.
- ii) Military Publications: Proof of performance shall consist of electronic tearsheet or one physical tearsheet within 90 days of run date unless otherwise specified on the IO.
iii) General Market Publications: Proof of performance shall consist of electronic tearsheet or one physical tearsheet within 90 days of run date unless otherwise specified on the IO.
- e) Broadcast: Proof of performance shall consist of post-log and/or signed affidavit within 30 days of run date.
- f) Other Proofs of Performance: All other proof of performance requirements not otherwise set forth shall be as mutually determined by the parties in good faith and set forth in the specifications and/or special instructions of this Agreement.”
5) CANCELLATION AND TERMINATION
- a) All campaigns are subject to space and service availability at the time a signed Agreement is received by REFUEL. With respect to Out of Home Media, final placement of all Ads is at the sole discretion of venue partner and is subject to change based on varying contractual agreements and right of final determination clause exercised by venue partner based on venue policies and procedures, provided that if a venue partner rejects any Ad, Client shall receive a refund for any fees associated with such ad under the applicable IO. All cancellation requests must be made in writing (email to suffice) to REFUEL.
- b) Without Cause. Subject to Client’s ability to terminate for cause as set forth in Section 5(c), unless designated on the IO as non-cancelable, CLIENT may cancel the entire IO, or any portion thereof, as follows:
- i) Digital:
(1) With 14 days’ prior written notice to REFUEL, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if CLIENT cancels the guaranteed portions of the IO eight (8) days prior to serving of the first impression, CLIENT will only be responsible for the first six (6) days of those Deliverables.
(2) With seven (7) days’ prior written notice to REFUEL, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables as noted herein.
(3) With 30 days’ prior written notice to REFUEL, without penalty, for any flat fee-based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
(4) CLIENT will remain liable to REFUEL for amounts due for any Custom Material provided to CLIENT or completed by REFUEL or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material (solely where the creation of such Custom Materials is approved by Client in writing), REFUEL will specify the amounts due for such Custom Material as a separate line item.
- ii) Out of Home (“OOH”): Client may cancel Refuel’s owned OOH with sixty (60) days prior written notice. General Market and Military OOH are non-cancelable. Notwithstanding the foregoing, Refuel shall make reasonable best efforts to cancel any General Market and/or Military OOH buys upon Client’s written request, provided that Client will be required to pay for any contractual commitments with General Market and/or Military OOH vendors for which Refuel remains obligated to pay as a result of Client’s cancelation.
iii) Print Advertising: CLIENT may cancel sixty (60) days prior to the Closing Date. “Closing Date” shall be defined as the final date on which REFUEL accepts advertiser commitments for ad placement in a particular print issue, as established by REFUEL in its internal production schedule and previously made known to Client.
- iv) Broadcast: Client may cancel with fourteen (14) days prior written notice.
- v) Omitted.
vii) If notice of cancellation is received later than the deadlines set forth in Section 5(b), then Advertisershall be responsible for the payment of the entire contracted fee, except in the case of standard online display advertising. For standard online display advertising and subject to the provisions of Section 5(b), Advertisershall be responsible for the fee for the impressions, video views and/or online activity contracted following the planned start date for a period that is equal to the lesser of (i) thirty (30) days, or (ii) the number of days from the day following receipt of such notice by REFUEL to the contracted end date of the campaign.
viii)Solely for cancelations for convenience, negotiated rates with any Network Propertyfor Ads that have not run as of the date of cancelation may be adjusted due to any cancellation for convenience, will be the responsibility of CLIENT.
- c) For Cause. Either REFUEL or Client may terminate an IO at any time without penalty if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party.
- a) Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), CLIENT and REFUEL will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, CLIENT may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If CLIENT has made a cash prepayment to REFUEL, specifically for the campaign IO for which under-delivery applies, then, if CLIENT and/or Advertiser is reasonably current on all amounts owed to REFUEL under any other agreement for such Advertiser, CLIENT may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will REFUEL provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of CLIENT.
- b) Notification of Digital Under-delivery. REFUEL will monitor delivery of the Ads, and will notify CLIENT either electronically or in writing as soon as possible (and no later than 14 days before the applicable IO end date unless the length of the campaign is less than 14 days) if REFUEL believes that an under-delivery is likely. In the case of a probable or actual under-delivery, CLIENT and REFUEL may arrange for a makegood consistent with these terms.
- c) Unguaranteed Digital Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
7) BONUS IMPRESSIONS
- a) With Third Party Ad Server. Where CLIENT uses a Third Party Ad Server, REFUEL will not deliver more than 10% above the Deliverables specified on the IO without the prior written consent of CLIENT. Permanent or exclusive placements will run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad Server activity. Client will not be charged by REFUEL for any additional Deliverables above any level guaranteed or capped on the IO. If a Third Party Ad Server is being used and CLIENT notifies REFUEL that the guaranteed or capped levels stated on the IO have been reached, REFUEL will suspend delivery within 48 hours of receiving such notice.
- b) No Third Party Ad Server. Where CLIENT does not use a Third Party Ad Server, REFUEL may bonus as many ad units as REFUEL chooses unless otherwise indicated on the IO. CLIENT will not be charged by REFUEL for any additional Deliverables above any level guaranteed on the IO.
8) AD MATERIALS
- a) All Advertising Materials must be furnished to REFUEL by no later than the following dates, or such other dates mutually agreed-to in writing by the parties:
- i) Standard online display advertising and email campaigns and broadcast advertising – five (5) business days prior to the start date of the campaign.
- ii) Non-standard online display advertising and email campaigns (including integrated videos,widgets/applications, or rich media) – five(5) business days prior to the start date of the campaign.
iii) Location media postings provided by Client – Fifteen (15) business days prior to the scheduled posting date
- iv) All other services – on dates determined by REFUEL and approved by Client in writing (such approval not to be unreasonably withheld or delayed), but always subject to REFUEL’s standard and reasonable technical requirements and procedures.
- b) If any Advertising Materials are received by REFUEL after the stated due dates, REFUEL shall employ, without incurring any liability and solely as an accommodation to Client, commercially reasonable efforts to process Advertising Materials by the agreed upon start date, or REFUEL may, at its option, not process the Advertising Materials, whether received or not, and invoice Client for the entire contracted fee for the applicable service. If REFUEL opts to process such Advertising Materials, then Client shall be charged for all out of pocket expenses incurred by REFUEL in connection with the processing of Advertising Materials delivered late. REFUEL reserves the right to revise, in a reasonable manner and at any time with notice to Client, the due dates for Materials.
- c) REFUEL shall have the right to review all Advertising Materials prior to acceptance and may then and thereafter, upon prior written notice to Client and a reasonable opportunity to cure, reject or withdraw Advertising Materials that do not meet its standards of content or technical quality, are not in compliance with Refuel’s Policies, or due to legal or governmental requirements. In the event such Advertising rejected or planned to be withdrawn, REFUEL shall notify Client. If Client (i) fails to provide Advertising Materials required by REFUEL to provide Services hereunder or (ii) if replacement Advertising Material is required and not supplied by Client by the required dates communicated to Client, then in either case REFUEL shall have the right to terminate this Agreement.
- d) Advertisers, manufacturers and all advertisements and products to be distributed through sampling and media channels are subject to approval by REFUEL prior to display or distribution, provided that if any ads are not approved by Refuel, Client and Advertiser shall not be obligated to pay (and shall be entitled to a refund for) any fees pursuant to the applicable IO.
- e) Prior to the execution of a campaign hereunder and if reasonably required, REFUEL shall prepare production and concept prototypes, mock-ups and /or other materials (together the “Specification Schedule”) for Client’s approval, which shall be given in its sole discretion. In the event Client requests changes or alterations to submitted materials that is otherwise in compliance with the Specification Schedule, then REFUEL shall at its option, without incurring any liability or limiting any of its rights hereunder and solely as an accommodation to Client, employ commercially reasonable efforts to accommodate such change requests, but always subject to the Specification Schedule deadlines. If REFUEL is required to incur additional costs or expenditure of human resources due to such change requests, then Client shall be charged for such additional costs at REFUEL’s actual costs or, in the case of expenditure of REFUEL human resources, at REFUEL’s standard card rate for such additional services, provided that no such additional costs or expenditures shall be incurred without the prior written consent of Client.Refuel shall not edit or modify any submitted Ads in any way, including, but not limited to, resizing the Ad, without Client’s approval.
- f) Digital Ad Submissions.
- i) Late Creative. If Advertising Materials are not received by the IO start date, REFUEL will begin to charge CLIENT on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, REFUEL is not required to guarantee full delivery of the IO. Refuel and Client will negotiate a resolution if Refuel has received all required Advertising Materials in accordance with these terms but fails to commence a campaign on the IO start date.
iii) Damaged Creative. If Advertising Materials provided by CLIENT are damaged, not to REFUEL’s specifications, or otherwise unacceptable, REFUEL will use commercially reasonable efforts to notify CLIENT within two (2) business days of its receipt of such Advertising Materials.
- iv) No Modification. REFUEL will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without CLIENT’s approval. REFUEL will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
- v) Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. In such cases REFUEL will be granted reporting access to the CLIENT’S AdServer with a clear description of all metrics including applicable Floodlight tags. In the event that such access is not given, REFUEL will refrain from campaign launch until resolved. In applicable cases REFUEL’S DBM must be linked to CLIENT’S AdServer (7) business days prior to campaign launch.
- g) Trademark Usage. REFUEL, on the one hand, and CLIENT, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence of content of these terms or an IO without the other’s prior written approval.
9) FORCE MAJEURE
- a) Generally. A party hereunder shall not 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, telecommunication lines failure, electrical outages, network failures, hosting failures, acts of God, or labor disputes. In the event such delay or default causes the start or continuation of a campaign or service to be delayed in excess of five (5) days, then the parties shall make commercially reasonable efforts to determine a make good adjustment or alternative service. If the parties cannot agree on a make good after good faith deliberation, then REFUEL shall grant a pro rata reduction in the space, time, and/or campaign fees for the period of such delay or default. In addition, Client will have the benefit of the same discounts that would have been earned had there been no default or delay.
- b) If Client’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Client’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Client will make every reasonable effort to make payments on a timely basis to Refuel, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Client from any of its obligations as to the amount of money that would have been due and paid without such condition.
- c) Cancellation. If a Force Majeure event has continued for ten (10) business days, the party that is not affected by the Force Majeure event has the right to cancel the remainder of the IO without penalty upon written notice to the other party.
10) INDEMNIFICATION & LIABILITY
- a) If Client is an agent and/or agency of an advertiser, it shall disclose its principal(s) to REFUEL and by such disclosure warrants Client’s authority to bind Advertiser to all of the terms and conditions of this Agreement and that all of Client’s actions will be within the scope of such authority.
- b) By Advertiser shall indemnify, defend and hold Refuel, its parent companies, subsidiaries, affiliates and its and their respective officers, employees and agents harmless from and against any and all claims, demands and causes of action, liability, judgments, damages, costs and expenses, including reasonable attorney’s fees and court costs (collectively “Claims”) arising out of or relating to: (i) any breach of the warranties and representations made by Advertiser hereunder and (ii) any the content or subject matter of any Ads or Advertising Materials to the extent used by Refuel in accordance with these terms of an IO.
- c) By Refuel. Refuel shall indemnify, defend and hold Advertiser and Client, their parent companies, subsidiaries, affiliates and its and their respective officers, employees and agents harmless from and against any and all Claims arising out of or relating to: (i) Refuel’s alleged breach of the terms of this Agreement; (ii) any Advertising Materials (including Custom Materials) supplied by Refuel under an IO or this Agreement; and (iii) the gross negligence or willful misconduct of Refuel.
- d) By Client. Client shall indemnify, defend, and hold Refuel and its parent companies, subsidiaries, affiliates, and its and their respective officers, employees and agents harmless from and against any and all Claims arising out of or relating to Client’s breach of its representation and warranty set forth in Section 10(a).
- c) Other than in connection with a party’s indemnification obligations hereunder, a party’s breach of its confidentiality obligations, or a party’s gross negligence or willful misconduct,noparty shall be liable to the other for any incidental, consequential, special, or punitive damages or lost or imputed profits or royalties arising out of this Agreement or its termination, whether for breach of warranty or any obligation arising there from or otherwise, whether liability is asserted in contract or tort (including negligence and strict product liability) and irrespective of whether a party has advised or has been advised of the possibility of any such loss or damage. Each party hereby waives any claims that these exclusions deprive it of an adequate remedy.
11) WARRANTIES & REPRESENTATIONS , MARKS & PUBLICITY
- a) Advertiserwarrants and represents that said Materials are, to the best of Advertiser’s knowledge, (i) do not contain any disabling or malicious device, code, virus, or software designed to have an adverse effect on the operability, functionality or performance of users’ or REFUEL computers, networks or systems, (ii) are free of any lien or encumbrance, (iii) do not infringe upon or violate any third party intellectual property right and (iv) are in compliance with all applicable laws and government regulations.
- b) REFUEL warrants and represents that any services provided hereunder shall be in compliance with all applicable laws and government regulations, will not infringe the rights of any third party, and that materials prepared for Client hereunder (other than materials provided by Client)are free of any lien or encumbrance.
- c) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PARTIES MAKE NO OTHER WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- d) Advertiserhereby grants to REFUEL a non-exclusive, royalty-free, non-sublicenseable worldwide license to use Advertiser’sapproved trademarks, trade names, service marks, slogans, logos, and name (collectively “Marks”) as approved in writing by Client only as necessary for REFUEL to perform its obligations in accordance with the terms of this Agreement and no other rights or ownership are transferred to REFUEL in connection with the Marks.
- e) REFUEL represents and warrants that it will not disclose to Client or otherwise process any personally identifiable information (as such term or similar terms are defined by the laws of any applicable jurisdiction) (“PII”) (such as e-mail addresses, names, mailing addresses and phone numbers) in connection with the provision of services under this Agreement. The parties agree that if, pursuant to the mutual written agreement of the parties, the foregoing changes, they shall enter into such additional written agreement(s) as is reasonably requested by Advertiser or Client (and/or in each case, as may be required by applicable law).
- f) Notwithstanding anything to the contrary herein, Client agrees that REFUEL may, solely upon Client’s prior written consent, in connection with any marketing materials, presentations, and/or corporate filings and reports, identify Client as a client and describe the Services and the related campaigns provided hereunder, provided that Refuel shall immediately remove any such identification of Client upon Client’s instruction. Client shall be depicted in all such instances in a positive light and no display or utilization of Client Property in all such instances shall imply or express any endorsement of REFUEL or of its products and/or services by Client.
12) NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
- a) Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party 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. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
- b) Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
- c) Additional Definitions. As used herein the following terms shall have the following definitions:
- i) “User Volunteered Data” is personally identifiable information collected from individual users by REFUEL during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
- ii) “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
iii) “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
- iv) “Site Data” is any data that is (A) preexisting REFUEL data used by REFUEL pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of REFUEL, REFUEL’s Site, brand, content, context, or users as such; or (C) entered by users on any REFUEL Site other than User Volunteered Data.
- v) “Collected Data” consists of IO Details, Performance Data, and Site Data.
- vi) “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
vii) “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
- d) Use of Collected Data.
- i) Unless otherwise authorized by REFUEL, CLIENT will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (B) disclose IO Details of REFUEL or Site Data to any Affiliate or Third Party except as set forth in Section XII(d)(iii).
- ii) Unless otherwise authorized by CLIENT or Advertiser, REFUEL will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO.
iii) Advertiser, CLIENT, and REFUEL (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- g) Compliance with Law. CLIENT, Advertiser, and REFUEL will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
- h) CLIENT Use of Data. CLIENT will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section 12(d)(i) shall not prohibit CLIENT from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
13) THIRD PARTY AD SERVING AND TRACKING (Applicable if Third Party Ad Server is used)
- a) Ad Serving and Tracking. REFUEL will track delivery through its ad server and, provided that REFUEL has approved in writing a Third Party Ad Server to run on its properties, CLIENT will track delivery through such Third Party Ad Server. CLIENT may not substitute the specified Third Party Ad Server without REFUEL’s prior written consent.
- b) Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:
- i) Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).
- ii) If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non-proprietary statistics to REFUEL in an electronic form that is approved by REFUEL; provided, however, that REFUEL must receive access to such interface in the timeframe set forth in Section XIII(c), below.
iii) If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on REFUEL’s ad server, unless otherwise agreed by CLIENT and REFUEL in writing.
- c) Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server seven (7) business days prior to campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by REFUEL. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary.
- d) Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between REFUEL and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, CLIENT reserves the right to either:
- i) Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that CLIENT and REFUEL make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
- ii) Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
- e) Measurement Methodology. REFUEL will make reasonable efforts to publish, and CLIENT will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
- f) Third Party Ad Server Malfunction. Where CLIENT is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, CLIENT will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by CLIENT of a non-functioning Third Party Ad Server, REFUEL will have 24 hours to suspend delivery. Following that period, CLIENT will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until REFUEL is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and CLIENT has not provided written notification that REFUEL can resume delivery under the IO, Advertiser will pay for the Ads that would have run, or are run, after the 72-hour period but for the suspension, and can elect REFUEL to serve Ads until the Third Party Ad Server is able to serve Ads. If CLIENT does not so elect for REFUEL to serve the Ads until Third Party Ad Server is able to serve Ads, REFUEL may use the inventory that would have been otherwise used for REFUEL’s own advertisements or advertisements provided by a Third Party.
- g) Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, REFUEL will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in REFUEL owing a makegood to CLIENT.
- a) Necessary Rights. REFUEL represents and warrants that REFUEL has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
- b) Assignment. Neither CLIENT nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without REFUEL’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
- c) Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
- d) Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of the State of New York. REFUEL and CLIENT (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in New York, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
- e) Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to REFUEL and CLIENT will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
- f) Survival. Sections 3, 4, ,8(h), 10, 11, 12, 13, and 14 will survive termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
- g) Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
- h) Insurance. Refuel will, at its own expense, obtain and maintain industry standard commercial general liability and professional liability insurance in amounts sufficient to cover its performance and indemnification obligations hereunder. Refuel shall provide Client and Advertiser, upon request, with certificates of insurance evidencing such coverage and naming Client and Advertiser and their parents, affiliates, and subsidiaries as additional insureds.