Terms and Conditions for Advertising Campaigns
1. Representations. Client represents and warrants that: (1) it is the owner of or is licensed to use the entire contents and subject matter contained in the Ad; (2) the Ad is free of any "worm", "virus" or other device that could impair or injure any person or entity; (3) the Ad does not violate any applicable laws or regulations, including, without limitation, those laws and regulations governing false or deceptive advertising, sweepstakes, gambling, comparative advertising, or trade disparagement; (4) the Ad does not contain any misrepresentation, or content that is defamatory or violates any rights of privacy or publicity; and (5) the Ad does not and will not infringe any copyright, trademark, patent or other proprietary right. If the Ad is for display and distribution in any foreign country, Client further represents and warrants that the Ad and any products or services offered in the Ad will comply with all applicable laws and regulations of such foreign country.
2. Terms of Payment. Client shall pay all amounts due hereunder on a monthly basis within the time period indicated in the IO, or if no time period is indicated in the IO, within fifteen (15) days after the end of each month. Unless otherwise indicated in an IO, all amounts due hereunder shall be calculated and paid in United States currency. Client shall calculate the amount due for each month based on its records of completed Actions, as discussed under Section 4 below, and shall make payment within the time period indicated above irrespective of whether or not Lucky Pacific has invoiced Client for such amounts. Lucky Pacific is not obligated to issue invoices for amounts due hereunder, but may do so at its discretion. If Client fails to calculate the amount due for each month or if the number of Actions reported by Client is less than the number of Actions determined based on pixel firing or Lucky Pacific‘s records, Lucky Pacific may calculate the amount due using its own data of completed Actions (in which case, Lucky Pacific’s data will be final and binding on the parties). Client shall pay to Lucky Pacific interest on any past due payments at the rate of 1.5% per month, or if less, the highest rate permitted under applicable law, and all costs of collection, including reasonable attorney's fees and expenses. The monthly amounts due hereunder and all Actions and other data upon which such amounts are based shall be final and binding on Client for all purposes unless Client objects in writing to the amounts, Actions or other data (collectively, the “Payment Information”) prior to the time payment is due. Client waives and releases any right to contest or otherwise challenge the Payment Information if Client fails to object in writing to any such items prior to the time payment is due. Client shall not raise any objection to Payment Information based on the quality of leads or fraud unless specific quality requirements or a definition of fraud is set forth in the particular IO. Client shall also pay all sales, use, excise and other taxes that may be levied upon either party in connection with this Agreement, except for taxes on Lucky Pacific’s income.
3. Delivery of Ads. Client will, at its sole cost and expense, create and deliver all content required for any Ad to Lucky Pacific (provided, however, that if any content is created by Lucky Pacific, Client shall approve such content in writing before publication). If such content does not conform to Lucky Pacific’s technical specifications or does not arrive timely enough to deliver such Ad on the agreed display dates, then Lucky Pacific, in its sole discretion, may: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after (1) the non-conforming content is corrected, or (ii) the late-arriving content is received. Lucky Pacific may, in its sole discretion, reject or remove any Ad, for any reason, in which event Lucky Pacific will refund any amounts paid in advance for such Ad or a prorated portion of such fees if such Ad is removed after a period of display. Client may not use a third party to serve or administer any Ad without Lucky Pacific’s prior written consent, which shall be given or withheld in Lucky Pacific’s sole discretion and may be subject to additional terms and conditions. Along with the delivery of the content for any Ad to Lucky Pacific, Client shall also deliver to Lucky Pacific instructions for any suppression files to be accessed and downloaded in connection with the Ad. Client shall be solely responsible complying with all applicable laws and regulations (including the CAN Spam Act, as amended) regarding suppression files for Client’s Ads, including maintaining and timely updating its suppression files and providing Lucky Pacific with access to the suppression files for use in connection with the Ad.
4. Actions; Audit Right. For purposes of this Agreement, “Action” means an act or event by a third party upon which a payment is based or determined, such CPA (cost per action) or CPM (cost per thousand), as set forth in the IO. Client shall promptly provide Lucky Pacific with periodic written accountings of all Actions so that Lucky Pacific can timely verify the monthly amounts due hereunder. Client shall be obligated to retain books and records pertaining to the Actions and other data necessary to compute the charges hereunder for at least one year after the conclusion of each Ad. Lucky Pacific shall have the right to audit such books and records. If the audit reveals an underpayment, Client shall promptly pay to Lucky Pacific such underpayment along with past due interest charges from the time originally due until paid. If the amount of the underpayment is more than 5%, Client shall also be obligated to pay to Lucky Pacific its reasonable audit costs.
5. Quality Control: Lucky Pacific reserves the right to refuse service to any new or existing Client, in its sole discretion, with or without cause. Lucky Pacific reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Ad or content thereof for any reason at any time, with or without notice to the Client and regardless of whether such Ad was previously accepted or published. Lucky Pacific does not accept Ads from Clients that produce or provide adult content. Ads and content thereof (along with any linked URLs) shall not include nudity, partial nudity or adult language. Lucky Pacific does not accept Clients that engage in, promote or facilitate illegal activities. Lucky Pacific may in its sole discretion refuse or restrict use of any Ad that it deems inappropriate or requires special handling. This Agreement is cancelable by Lucky Pacific immediately if Client fails to disclose, conceals or misrepresents itself in any way.
6. License. For the term of this Agreement, Client hereby grants to Lucky Pacific and Lucky Pacific’s affiliates and partners a non-exclusive, royalty-free, worldwide license to (a) use, perform and display all Ads delivered hereunder in accordance with the terms of the IO, and (b) use all associated Client intellectual property in connection therewith. Title to and ownership of all intellectual property rights of all Ads and associated Client intellectual property shall remain with Client or its third party licensors. In addition, Client agrees that Lucky Pacific may, during the term of this Agreement and thereafter, include Client’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on Lucky Pacific’s Client list and in its marketing materials and sales presentations.
7. DISCLAIMER OF WARRANTIES. LUCKY PACIFIC PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES AND PARTNERS, AS PERFORMED HEREUNDER, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. WITHOUT LIMITING THE FOREGOING, LUCKY PACIFIC DOES NOT WARRANT OR GUARANTEE THE SUCCESS OF ANY AD OR THE QUALITY OF LEADS GENERATED FROM THE AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, LUCKY PACIFIC ‘SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. LUCKY PACIFIC DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
8. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL LUCKY PACIFIC BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF LUCKY PACIFIC WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL LUCKY PACIFIC BE LIABLE TO CLIENT OR ANY THIRD PARTIES FOR AN AMOUNT OF DAMAGES GREATER THAN $5,000. IN LIEU OF PAYING DAMAGES, LUCKY PACIFIC SHALL BE GIVEN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED TO PROVIDE CLIENT WITH A SUBSTITUTE AD PLACEMENT.
9. Termination. In addition to any other remedies that may be available to it, Lucky Pacific may immediately terminate the IO in the event of any breach by Client of the representations and warranties contained herein or nonperformance of any of its obligations hereunder. Either party may terminate any IO, for any or no reason on ten (10) days prior written notice. Sections 1, 4, 7, 8, 10, and 11, and any accrued but unpaid payment obligations, shall survive termination.
10. Indemnity. Client agrees to indemnify, defend, and hold harmless Lucky Pacific for any claims, liabilities, costs and expenses (including reasonable attorney’s fees) incurred by Lucky Pacific as a result of the acts or omissions or breach of this Agreement by Client. Lucky Pacific agrees to indemnify defend, and hold harmless Client for any claims, liabilities, costs and expenses (including reasonable attorney's fees) incurred by Client as a result of acts of gross negligence or willful misconduct by Lucky Pacific. In the event either of these indemnities include claims against the employees, agents or affiliates of Lucky Pacific or Client, those employees, agents, or affiliates shall be indemnified just as their principal would be.
11. Confidential Information. “Confidential Information” shall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. Neither Client nor Lucky Pacific shall disclose or use the other party's Confidential Information for any purpose other than the purposes contemplated by this Agreement, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party's Confidential Information to the extent required by applicable law, but only after five (5) days prior written notification to the other party of such required disclosure. Upon termination, cancellation or expiration of this Agreement for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed. Client's Confidential Information shall remain the property of Client, and Lucky Pacific' Confidential Information shall remain the property of Lucky Pacific.
12. Other. This Agreement will be governed and construed in accordance with the laws of the State of California without giving effect to conflict of laws principles. Client and Lucky Pacific agree to submit to jurisdiction in California and venue in the courts of San Mateo County, California. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Client may not assign this Agreement without the prior written consent of Lucky Pacific. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. This Agreement may be executed and delivered by facsimile and the parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures.
13. Other Agreements. This Agreement and any related IO’s sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a writing signed by both parties may change this Agreement.
Call: (650) 585-9489