Propel Media Advertiser Program Terms & Conditions

These Propel Media Advertiser Program Terms and Conditions along with the applicable Advertiser Insertion Order (collectively, the “Agreement”) is entered into by and between the company set forth on the applicable Advertiser Insertion Order (“Advertiser”) and Propel Media LLC, a company with principal offices located at 18565 Jamboree Road, Suite 200N, Irvine, CA 92612 (“Propel Media”), effective as of the date the applicable Insertion Order is accepted and signed by Propel Media (the “Effective Date”) and will govern Advertiser’s participation in the Propel Media and/or its Affiliates’ (as defined below) online advertising program (the “Program”). In consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Advertiser and Propel Media agree as follows:

 

I. PROGRAM DESCRIPTION

1.1  Overview. Under the Program and based on the Campaign (as defined below) information Advertiser provides, Propel Media will serve to users connected to the internet and who have agreed to receive: (a) full page display Advertisements (as defined below) based on user search terms and URLs visited (referred to herein as “Display Advertisement(s)”), (b) textlink Advertisements (“TextLink Advertisement(s)”) based on keywords on web pages visited by users, (c) banner Advertisements (“Banner Advertisement(s)”) and/or (d) video Advertisements (“Video Advertisement(s)”). In addition and for the avoidance of doubt, if Advertiser chooses to run, as part of its Campaign, Display Advertisements and/or TextLink Advertisements, then all references to Keyword Targeting, CPC and CPV (collectively defined below) in this Agreement  shall only be applicable to such Campaigns and not to any Campaigns for Banner Advertisements.

1.2  Definitions. In addition to the terms defined within other provisions of this Agreement, the following capitalized terms shall have the meanings associated with them below.

  1. The term “Advertisement(s)” means advertisement(s) delivered by Advertiser that are served to users pursuant to the Program, including all content of such advertisements (whether trade names, domain names, logos, trademarks, service marks, text, graphics, audio, weblinks, URLs, or otherwise, individually and collectively, referred to herein as the “Content”).
  2. The term “Affiliate(s)” means parent company, parent company’s subsidiaries, principals, employees, officers, consultants, directors, members, agents, subsidiaries and affiliates.
  3. The term “Campaign(s)” means advertising ordering information (e.g., designation of Keyword Targets, bid amounts, banner purchases, etc.) Advertiser submits via the Program, including by way of the Propel Media website, along with any updates and modifications to the same which Advertiser may implement from time to time during Advertiser’s participation in the Program.
  4. The term “Keyword Targets” means keywords, keyword phrases, search terms or URLs which Advertiser selects for Advertiser’s CPC and/or CPV Campaigns.

1.3  Frequency of Displays. How often Advertiser’s Advertisements are served is dependent upon (i) the terms of Advertiser’s then-current Campaign, and/or (ii) whether other advertisers have selected the same Keyword Targets as Advertiser has and/or have agreed to pay a higher price for displays. For example, Advertiser may not receive any clicks or impressions of Advertiser’s Advertisements with respect to a specific Keyword Target if there are other advertisers bidding more than Advertiser is bidding for that Keyword Target. Typically, the higher the bid on a Keyword Target, the greater the volume of the bidder’s Advertisements served for that Keyword Target. To be clear however, notwithstanding the foregoing or anything to the contrary in this Agreement, Advertiser acknowledges and agrees that Propel Media makes no promise or guarantee regarding any minimum or certain number of clicks or impressions with respect to any one or more Advertisements and/or Keyword Targets.

 

II.  CAMPAIGN RULES AND RESTRICTIONS

2.1  Submission of Campaign Information. Advertiser may update Advertiser’s Campaign information at any time. Such updates will be implemented as soon as reasonably practicable. Updates may include, for example, changes to Keyword Targets or changes in fee levels. Advertiser’s updates will have prospective effect only.

2.2  Campaign Responsibility. Advertiser may request the help or involvement of Propel Media to help Advertiser select Keyword Targets, develop Advertiser’s Campaign strategy, manage Advertiser’s Campaign(s) or otherwise support Advertiser’s participation in the Program (all such services, collectively referred to herein as “Campaign Support”). However, Advertiser understands, acknowledges and agrees that (i) Propel Media is under no obligation to provide Campaign Support pursuant to this Agreement and will have no liability to Advertiser or to any third party for the provision of and/or any failure to provide such Campaign Support, and (ii) at all times Advertiser shall remain solely responsible for (a) the content, design and management of Advertiser’s Campaigns, including confirming and maintaining the accuracy and acceptability of Advertiser’s Campaign parameters and set-ups, (b) the selection of Advertiser’s Keyword Targets, (c) the creation and submission of Advertisements which are in compliance with Propel Media requirements, the terms of this Agreement and with applicable laws, (d) the content of any destinations or items linked to Advertiser’s Advertisement, and (e) the process, success, content, quality and accuracy of all transactions with, or information provided to, users through Advertiser’s Advertisements. Advertiser also acknowledges and agrees that with respect to the Campaigns and/or the Programs, it shall be responsible and held liable for all actions taken by any of its users under the Advertiser’s Account (as defined below), including any sub-accounts created within the Advertiser’s Account.

2.3  Submission of Advertisements. Advertisements shall be submitted in accordance with the terms of this Agreement (including updates to this Agreement as made from time to time by Propel Media in its sole discretion). If and to the extent that a delivered Advertisement does not conform to Propel Media’s then-current format specifications and/or policies and the terms of this Agreement, Propel Media may, at its option and in its discretion: (i) immediately reject the Advertisement and require Advertiser to submit a compliant Advertisement, or (ii) make technical modifications as necessary to conform the Advertisement with such specifications. Propel Media may also immediately reject or suspend an Advertisement, in its discretion, if Propel Media believes the content of the Advertisement is or may be (a) inappropriate, (b) unauthorized by necessary third parties, (c) in violation of Propel Media’s or any third party’s intellectual property rights and/or in violation of any applicable law, regulation, ordinance or rule, or (d) inconsistent or incompatible with the business interests of Propel Media or its Affiliates. Neither Propel Media nor its Affiliates shall have any liability to Advertiser or any third party including any third party claiming through Advertiser as a result of or arising out of (a) Propel Media’s decision to reject or suspend an Advertisement, (b) Propel Media’s decision to accept any Advertisement, or (c) Propel Media’s transmission, delivery, posting or other distribution of such Advertisement, directly or through its Affiliates.

2.4  Labeling of Advertisements. In Propel Media’s sole discretion, Advertisements may be labeled by Propel Media as an Advertisement being served via the Program. If an Advertisement is labeled by Propel Media, Advertiser must keep the label of the Advertisement in exactly the same form and format as provided by Propel Media and may not modify in any way, intentionally or not, in whole or in part, such label, including but not limited to, any technical workarounds.

2.5  License. Advertiser hereby grants to Propel Media a non-exclusive, license fee-free and royalty-free, worldwide license to use, store, reproduce, distribute, create derivative works of, publicly perform, publicly display and digitally perform all of Advertiser’s Advertisements (including all Content) for purposes of performing its obligations under this Agreement and for related promotional and business purposes.

2.6  Program Reports and Data; Usage Statistics. Any data which may be collected in connection with the operation of the Program, including in connection with the implementation and operation of Advertiser’s Campaign(s), shall be and remain the sole and exclusive property of Propel Media; provided, however, that, Propel Media hereby grants to Advertiser the right to use any Program report provided or made available to Advertiser by Propel Media for Advertiser’s internal business purposes. In addition, at Advertiser’s request, and subject to Advertiser’s compliance with applicable security measures, Advertiser will have access to usage statistics relating to Advertiser’s Advertisements. Propel Media will not provide Advertiser with specific usage statistics relating to other advertisers.

2.7  Program Prohibitions. In no event is Advertiser authorized to and it shall be deemed a material breach of this Agreement if Advertiser, directly or indirectly, uses the Program in violation of this Agreement (including updates to this Agreement as made from time to time by Propel Media in its sole discretion) or uses the Program (including any Advertisement) to:

  1. infringe on any third party’s copyright, patent, trademark, trade secret or other intellectual property or proprietary rights or any third party right of publicity or privacy, including but not limited to, generating unauthorized displays of Advertisements or third party advertisements, or distributing an Advertisement which includes third party content without having secured any and all rights, consents, licenses, waivers and clearances required from and the express prior documented authorization of such third party;
  2. generate or facilitate visits to websites that are based on fraudulent or deceptive practices, including the use of robots or other automated tools to generate unintended user requests, to open windows without a direct user click or authorization, and/or to redirect a user to a website such user did not intend to visit;
  3. use optimization services and/or software to fraudulently alter information regarding advertising results;
  4. advertise any substances, services, products or materials that are illegal or prohibited in any state or country or other jurisdiction where the Advertisement is or may be displayed;
  5. violate any applicable law, statute, ordinance, rule or regulation, including the laws and regulations governing (i) misleading, false or deceptive advertising, (ii) online advertising or marketing, (iii) anti-discrimination, (iv) unfair competition, or (v) export control;
  6. disseminate Content which (i) is defamatory or libelous or constitutes trade disparagement or libel, (ii) is lewd or obscene, (iii) consists of an adult nature or products of an adult nature, including images, videos or text portraying nudity, sexual acts, drugs, adult toys or contraceptives, unless otherwise approved in advance by Propel Media; or (iv) promotes violence or hate speech;
  7. disseminate Advertisements that includes or consists of gambling, sweepstakes or similar activities, unless otherwise approved in advance by Propel Media;
  8. display any download prompt or Active-X launch prompt or Active-X auto-install without requiring a direct click on Advertiser’s Advertisement by the user;
  9. redirect a user to another URL without a direct click by the user on Advertiser’s Advertisement;
  10. modify, tamper with or interfere with the operations or size of the window inside which the Advertisement is displayed in a manner that prevents the title bar and window closing controls from being visible;
  11. disseminate viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines that if downloaded could cause harm (intentionally or unintentionally) to a user’s computer;
  12. disseminate Content that has been modified in any respect from or is additional to that originally submitted to Propel Media with the Advertisement or promote products or services different from or in addition to those initially represented or promoted by the Advertisement originally submitted to Propel Media;
  13. modify, alter, hack or change in any way, intentionally or not, in whole or in part, the label of the Advertisement provided by Propel Media as an Advertisement being served via the Program; or
  14. engage in practices which Propel Media, after considering established industry standards but in its sole discretion, determines to be misleading, deceptive, unfair, damaging to Propel Media users or business or otherwise inappropriate or unacceptable.

Advertiser acknowledges and agrees that any violation of any of the foregoing terms may result in the immediate suspension or termination of Advertiser’s participation in the Program and/or termination of this Agreement by Propel Media and may subject Advertiser to other legal consequences and damages, including direct and indirect damages under contract, equity, law, tort and otherwise.

2.8  Representations and Warranties. Advertiser represents and warrants that:

  1. the information Advertiser has provided or will provide in connection with Advertiser’s participation in the Program is and will be accurate and complete and will be updated as required during the term of this Agreement in order to maintain its accuracy, currency and completeness;
  2. Advertiser holds and will maintain during the term of this Agreement all rights, consents, licenses, waivers, clearances, requisite approvals, permits and/or necessary filings, and all authority required to produce, deliver, and distribute the Advertisements as contemplated hereunder and to authorize Propel Media to use, store, reproduce, display, transmit and distribute the Advertisement;
  3. Propel Media’s use, storage, reproduction, display, transmission or distribution of Advertiser’s Advertisements, and any web site(s) linked to through Advertiser’s Advertisements, and products or services to which users are directed through Advertiser’s Advertisements, will not, in any state or country or other jurisdiction where the Advertisement is or may be displayed violate any applicable law, statute, regulation, rule or ordinance;
  4. Advertiser will not, nor will Advertiser authorize any third party to, infringe upon or misappropriate Propel Media’s or its Affiliates’ intellectual property embodied within or relating to, copy, clone, reverse engineer, decompile, disassemble, or otherwise attempt to gain unauthorized access to or derive the source code of, hack, interrupt, interfere with or damage the operation of the Program, the Propel Media website or any other website or operations of Propel Media or its Affiliates; and
  5. Advertiser will not violate the “Program Prohibitions” set forth in Section 2.7 above.

2.9  Relationship Between Propel Media and Advertiser.  The relationship between Advertiser and Propel Media is one of independent contractors and nothing contained within this Agreement or relating to Advertiser’s or Propel Media’s performance under this Agreement shall in any way modify that relationship or be construed to make either party a partner, employee, agent or joint venturer of the other. Without limiting the foregoing, (a) neither Propel Media nor Advertiser may make any representation or commitment or incur any obligation on behalf or in the name of the other party, and (b) Advertiser will not make any commitment to any third party which would purport to require Propel Media to make the Program available or continue the Program or its support of any Campaign or any element of any Campaign for any minimum or fixed period of time.

 

III.  FEES AND PAYMENT TERMS

3.1  How Advertiser is Charged. Program charges are determined by (a) how much Advertiser chooses to “bid” for Advertiser’s Advertisement to be served on the Keyword Targets Advertiser has selected for such Advertisement, and (b) how often Advertiser’s Advertisement is served. Display Advertisements are charged on a Cost Per View/Display (“CPV”) basis.  TextLink Advertisements are charged on a Cost Per Click (“CPC”) basis. Banner and Video Advertisements are charged on a Cost Per Thousand Impressions (“CPM”) basis or on a revenue share basis (depending on what is stated in the applicable Insertion Order).  There is a minimum bid level for Advertisements which will be posted on the Propel Media website.

Program fees do not include any applicable taxes, duties or other governmental charges, all of which shall be Advertiser’s responsibility. Propel Media may modify its fee structure, including then-current minimum bid levels, at any time, with prior notice to Advertiser which notice shall be communicated either through a posting on the Propel Media website or via email.

Advertiser understands and agrees that all Program charges will be calculated solely based upon Propel Media records, unless as otherwise stated on the applicable Insertion Order. Unless as otherwise stated on the applicable Insertion Order, no other measurements or statistics of any kind shall be accepted by Propel Media or have any effect under this Agreement. If Advertiser disputes any charge made under the Program, Advertiser must notify Propel Media in writing within fifteen (15) days of any such charge; failure to so notify Propel Media shall be deemed a waiver by Advertiser of any claim relating to the disputed charge.

Advertiser will not be responsible to pay for the portion of traffic from Propel Media that is deemed to be fraudulent (“Fraudulent Traffic”), provided that Advertiser produces reasonable supporting documentation evidencing such Fraudulent Traffic (including any documentation specifically required on the Insertion Order) within seven (7) days of its first occurrence. Fraudulent Traffic means traffic that is automated or designed to generate clicks or views that are not the actions of human end users with an actual desire to engage with the content appearing on the respective page(s). Hence, except for Fraudulent Traffic, Advertiser will be responsible for the payment of any amounts due hereunder whether or not Advertiser is paid by the third party(ies), if any, on behalf of whom Advertiser is creating, delivering, disclosing or distributing one or more Advertisements.

3.2  Pre-Payment Funding Requirements for Display and/or TextLink Advertisement Campaigns. If Advertiser is on pre-payment terms for a Display and/or TextLink Advertisement Campaign, Advertiser must maintain a positive cash account balance in Advertiser’s online Program account (“Advertiser’s Account”) in order to initiate and maintain a Campaign. Advertiser’s Account may be funded via credit card, check, wire transfer or Automated Clearing House (“ACH”). Advertiser may check Advertiser’s Account balance at any time via the Propel Media website. Campaign charges are generally posted to Advertiser’s Account within thirty (30) minutes following the delivery of an Advertisement. Specific instructions as to how to fund Advertiser’s Account via check, wire transfer or ACH will be provided by Advertiser’s account manager. Instructions for credit card funding are provided below.

To fund Advertiser’s Account via credit card for the first time and/or when the credit card’s issuing bank does not require a payer authentication process, Advertiser is required to provide Propel Media with a signed credit card authorization form in the form sent by Propel Media via DocuSign. Advertiser may take these additional steps if it cannot sign the authorization form via DocuSign for any technical reason: (1) check the notification bar or the credit card profile in Advertiser’s Account to verify the correct email address was used to receive the authorization form via DocuSign; (2) check the email’s junk or SPAM folder; or (3) create a free DocuSign account to access the form through DocuSign’s interface. Individual credit card transactions may not exceed $20,000 USD ($10,000 USD for non-US issued credit cards) per transaction or $300,000 USD ($150,000 USD for non-US issued credit cards) per calendar month. Funding in excess of the foregoing amounts must be remitted via wire transfer, check or ACH.

For one-time first time funding, the minimum starting balance for new accounts is $1,000 USD. Program charges will be automatically credited against Advertiser’s Account balance until the balance is exhausted. If Advertiser’s Account balance goes to zero, Advertiser’s participation in the Program, including the continuation of any ongoing Campaign, will be paused without notice. Advertisers may at any time replenish or add to Advertiser’s Account balance in prepayment blocks of at least $500 USD.

Advertiser agrees that under no circumstances will Advertiser rescind or charge back payments (and any associated taxes or other charges) made to Propel Media via credit card.

3.3 Auto-Funding Requirements for Display and/or TextLink Advertisement Campaigns. An auto-funding credit card option is available to an eligible Advertiser, which allows Advertiser to automatically maintain its account balances at specified levels. This option is only available for credit cards that have at least ten (10) successful transactions made on such card and to Advertisers in selected international regions that provide third party verification from the credit card’s issuing bank. In addition, the auto-funding transaction will only be authorized after the signing of the auto-funding authorization form and Propel Media’s approval in its sole discretion. The Advertiser selected minimum auto-funding charge amount is $500 USD and the maximum auto-funding charge amount is $50,000 USD for US credit cards ($25,000 USD for non-US issued credit cards). The Advertiser selected minimum account balance to trigger an auto-funding charge is $200 USD and a maximum account balance to trigger an auto-funding charge is $20,000 USD for US credit cards ($10,000 USD for non-US issued credit cards). The total monthly allowable charges per Advertiser are $500,000 USD for US credit cards and $250,000 USD for non-US issued credit cards.  Advertisers on auto-funding also have the option to fund their accounts with other acceptable payment methods.  International auto funding account eligibility, maximum charge, maximum account balance and total monthly charges will be decided on a case by case basis and in Propel Media’s sole discretion. Advertiser must sign a new auto-funding authorization form if there is any change to the credit card, billing address, amounts, names and other information provided by Advertiser to Propel Media.  Advertisers must enroll every twelve (12) months to maintain an active auto-funding status and Propel Media reserves the right to terminate or suspend such status at any time in its sole discretion.

To pause account charges, Advertiser must log on to its Account and follow account pause procedures. To terminate Advertiser’s Account, Advertiser must follow the procedures set forth in Section 5 below. Advertiser understands and agrees that unless and until Advertiser has completed the procedures to pause or terminate (as applicable) Advertiser’s Account, Advertiser will be responsible for all charges incurred.

Advertiser agrees that under no circumstances will Advertiser rescind or charge back payments (and any associated taxes or other charges) made to Propel Media via credit card.

3.4 Net Payment Campaign Funding Requirements. If Advertiser is on net payment terms, invoices for Program charges will be due and payable based on the applicable Advertiser Insertion Order.  Amounts paid after such date on the applicable Advertiser Insertion Order shall bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less). Advertiser will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Propel Media in collecting delinquent, withheld or rescinded amounts.

3.5  Forfeiture for Inactivity for Display and/or TextLink Advertisement Campaigns. If Advertiser’s Account is inactive for more than six (6) consecutive months, Advertiser’s Account will be closed and any balance therein will be forfeited unless such forfeiture is waived by Propel Media in its sole discretion.

 


IV. DISCLAIMER OF ALL PROGRAM WARRANTIES

ADVERTISER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT THE PROGRAM, INCLUDING ALL SERVICES PROVIDED UNDER AND PRODUCTS SUPPORTING THE PROGRAM, IS PROVIDED TO ADVERTISER “AS IS” AND WITHOUT ANY WARRANTIES, AND THAT ADVERTISER’S PARTICIPATION IN THE PROGRAM IS AT ADVERTISER’S OWN RISK. WITHOUT LIMITING THE FOREGOING, ADVERTISER UNDERSTANDS AND ACKNOWLEDGES THAT PROPEL MEDIA AND ITS AFFILIATES: (A) EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE PROGRAM (INCLUDING ALL SERVICES PROVIDED UNDER AND PRODUCTS SUPPORTING THE SAME), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES IMPLIED OR ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (B) DOES NOT WARRANT OR REPRESENT THAT (I) THE PROGRAM WILL MEET ADVERTISER’S REQUIREMENTS, (II) OPERATION OF THE PROGRAM WILL BE ERROR-FREE OR UNINTERRUPTED, (III) ADVERTISER’S USE OF THE PROGRAM WILL GENERATE ANY SALES OF ADVERTISER’S PRODUCTS OR SERVICES OR THOSE OF ANY THIRD PARTY ON WHOSE BEHALF ADVERTISER MAY BE SUBMITTING ADVERTISEMENTS, OR (IV) THE PROGRAM WILL DELIVER ANY MINIMUM OR SPECIFIC NUMBER OF ADVERTISEMENTS.

 


V. TERMINATION OF AGREEMENT, PROGRAM, CAMPAIGN

5.1  Termination by Either Party.  Propel Media may at any time, in its sole discretion and without prior notice to Advertiser, immediately terminate the Program, this Agreement, or Advertiser’s use of any Keyword Target, Campaign or Advertisement. Propel Media will, however, use commercially reasonable efforts to notify Advertiser via email of any such termination within a reasonable period of time. Advertiser may, at any time, in Advertiser’s sole discretion, terminate this Agreement and Advertiser’s participation in the Program by providing two (2) business days prior written notice to Propel Media by email or by US mail as set forth in Section 9.1 below. Notwithstanding the provision of notice, however, to pause account charges that may be incurred after Advertiser has provided notice of termination but prior to the effective date of termination, Advertiser must log on to its Account and follow all account charge pause procedures. If Advertiser has auto-funded Advertiser’s Account pursuant to Section 3.3, then in addition to providing notice of termination, and pausing charges on Advertiser’s Account, Advertiser must follow the account termination procedures set forth in the auto-funding agreement.

5.2  Effect of Termination on Account Balances for Display and/or TextLink Advertisement Campaigns.  If, upon termination of this Agreement, Advertiser has a positive balance in Advertiser’s Account due to prior prepayments, and if such termination resulted other than from Advertiser’s breach of this Agreement, Propel Media shall (a) if such termination occurs within the first six (6) months of Advertiser’s participation in the Program, refund to Advertiser the amount of such balance (after deducting Program fee charges and any other charges which may have been incurred prior to and through the effective date of termination), or (b) if such termination occurs after the first six (6) months, provide Advertiser with an additional ninety (90) days during which to use any account balance before forfeiting the same. If this Agreement terminates as a result of Advertiser’s breach, then Advertiser shall forfeit any balance in Advertiser’s Account unless such forfeiture is waived by Propel Media, in its sole discretion; provided, however, any such forfeiture shall not prejudice any other rights or remedies Propel Media may have available to it as a result of such breach.

5.3  Other Consequences of Termination.  Neither party shall have any liability to the other or to any third party as a result of its decision to exercise or waive its rights under Section 5.2 above (if applicable); provided however, that any termination of this Agreement, the Program, a Campaign or any element of a Campaign shall not affect either party’s rights or obligations (including payment obligations) under this Agreement to the extent such rights or obligations incurred or accrued prior to the effective date of termination. In addition, those provisions which by their nature would be understood to survive any termination shall be deemed to survive, including those provisions governing ownership rights, payment obligations, limitation of liability, releases, disclaimers, indemnification, ownership, confidentiality, assignment, governing law and venue, and integration.

 


VI. LIMITATION OF LIABILITY

6.1  Limitation of Liability.  IN NO EVENT WILL PROPEL MEDIA OR ITS AFFILIATES BE LIABLE TO ADVERTISER OR TO ANY THIRD PARTY (WHETHER OR NOT CLAIMING BY OR THROUGH ADVERTISER) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS, REVENUES, GOOD WILL, REPUTATION, PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ADVERTISER’S USE OR THE PERFORMANCE OF THE PROGRAM, WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED ON LAW, EQUITY, CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT PROPEL MEDIA OR ITS AFFILIATES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. PROPEL MEDIA’S AND ITS AFFILIATES’ CUMULATIVE LIABILITY TO ADVERTISER AND ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND BASED ON ANY THEORY OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES PAID BY ADVERTISER TO PROPEL MEDIA DURING THE THIRTY (30) DAY PERIOD PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.

6.2  Force Majeure. Neither party shall incur any liability hereunder as a result of a failure or delay in such party’s performance (other than in the performance of its payment obligations) to the extent such failure or delay results from interruptions in the electrical supply, failure of the Internet, terrorism, cyber attack, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, or any other condition or occurrence beyond the reasonable control of such party.  In the event of any such failure or delay on the part of Propel Media, Propel Media’s sole and exclusive obligation and Advertiser’s sole and exclusive remedy shall be for Propel Media to, in its discretion and at its sole election, (a) restore service as soon as reasonably practicable, or (b) terminate this Agreement upon written notice to Advertiser.

6.3  Additional Releases. In no event will Propel Media or its Affiliates be liable for, and Advertiser hereby releases each from any claim by Advertiser and/or any third party arising out of or in connection with (a) the lack of success of any Campaign, (b) the failure of any Campaign or any Advertisement to achieve any minimum or fixed number of clicks or impressions with respect to any one or more Advertisements and/or Keyword Targets in any particular context or at any particular time, (c) Propel Media’s implementation of a campaign on behalf of any third party which is or may be at any time competitive with a Campaign established by Advertiser, and (d) any Campaign Support provided (or not provided) by Propel Media.

 

VII. INDEMNIFICATION

Advertiser agrees to indemnify, defend and hold Propel Media and its Affiliates harmless from and against any and all liability, loss, damages, claims or causes of action, including internal and external legal fees and expenses, arising out of, related to or which may arise from (a) Advertiser’s use of the Program, (b) Advertiser’s Advertisements and any material to which users can link through an Advertisement, (c) Advertiser’s selection and use of Keyword Targets (if applicable), and/or (d) Advertiser’s breach of any term (including any warranty or representation) of this Agreement.  If any claim or action is brought against Propel Media or its Affiliates for which indemnity may be sought pursuant to this Section 7, Propel Media or its Affiliates shall be entitled to participate at their own expense in the defense of such claim, and no settlement may be entered into by Advertiser without Propel Media’s or its Affiliates’ prior written consent.

 

VIII. OWNERSHIP, CONFIDENTIALITY AND PRIVACY

8.1  Ownership; No Transfer of Title. Nothing in this Agreement shall be construed as transferring any intellectual property rights or ownership interests from Propel Media to Advertiser. Without limiting the foregoing, all ownership of and all right, title and interest including all copyrights and all other intellectual property rights in and relating to the Program, websites, services, design and formatting specifications and any content embodied by or set forth in the same shall be and remain exclusively with Propel Media or its Affiliates. Propel Media and its Affiliates reserve all rights not expressly granted hereunder.

8.2  Confidential Information.  Each party agrees that all non-public business, marketing, technical (including software code and algorithms), operational, vendor, marketing (including pricing, Keyword Target performance statistics, and competitive information), employee, customer, and financial information they obtain from the other, are the confidential property of the disclosing party (“Confidential Information”).  The receiving party shall protect the Confidential Information with the same degree of care as it would with its own Confidential Information, but in no event with less than reasonable care. The receiving party shall not disclose Confidential Information to the receiving party’s employees, agents, consultants, subsidiaries, corporate affiliates or any other third parties, except when disclosure is necessary to perform the obligations under this Agreement, provided that any such recipient shall be under the same obligations of confidentiality as that of the receiving party and shall be contractually bound to protect the Confidential Information consistent with the terms of this Agreement. The receiving party shall not be obligated under this Section 8.2 with respect to information the receiving party can document (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents, (ii) is received without restriction from a third party lawfully in possession of such information and lawfully empowered to disclose such information, (iii) is legally required to be disclosed in filings with the Securities and Exchange Commission, or (iv) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party. The receiving party may make disclosures required by law or court order provided the receiving party uses reasonable efforts to notify the other party in writing as promptly as practicable (and, if possible, prior to making the disclosure) in order to permit the disclosing party to limit disclosure and to obtain confidential treatment of the information.

 


IX. MISCELLANEOUS TERMS AND CONDITIONS

9.1  Notices. All notices to Propel Media shall be sent via email to legal@propelmedia.com or by United States mail to: Propel Media LLC, 18565 Jamboree Road, Suite 200N, Irvine, CA 92612 Attention: Legal Department.  Notices to Advertiser shall be delivered via email to the email address Advertiser provides with Advertiser’s Campaign information or by United States mail to Advertiser at the address first set forth above.

9.2  Privacy Policy. The parties agree to post their respective privacy policies and adhere to their policies, which comply with applicable laws.

9.3  Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to its conflicts of laws provisions.  The sole and exclusive venue of any claims arising out of or in connection with this Agreement shall be resolved in courts of competent jurisdiction in Orange County or Los Angeles, California.  Each party hereby agrees to the personal jurisdiction of such courts and waives any objections it may have to venue, including any objection of forum non conveniens.

9.4  Public Announcements.  Advertiser agrees not to, at any time before, during or after the term of this Agreement, issue any press releases or other public statements concerning the existence, subject matter, terms or performance of any Campaign or this Agreement without Propel Media’s prior written approval.

9.5  Entire Agreement. This Agreement (a) represents the entire understanding between Advertiser and Propel Media with respect to Advertiser’s participation in the Program, and (b) supersedes all prior and contemporaneous agreements, express or implied, oral or written, relating to the subject matter hereof.  Propel Media reserves the right to update, change, revise, modify, and supplement the terms within this Agreement at any time. Advertiser’s continued participation in the Program following the posting of such changes to this Agreement will constitute Advertiser’s acceptance of any such changes.  In addition, this Agreement may be modified or amended by a signed written agreement between the parties. Likewise with respect to the matters covered herein, the parties agree that this Agreement shall (i) govern and control and shall not be deemed to be modified by any inconsistent or conflicting terms set forth on the Propel Media website (except for updates to this Agreement as described above), and (ii) supersede any click-through agreement on Advertiser’s or its Affiliate’s website, including but not limited to for the purpose of registering an account to access reporting and other usage information, whether or not any such click-through agreement is ‘accepted’ by Propel Media before, on or after the Effective Date. The word “including” or its variants shall be construed non-exclusively to mean “including but not limited to.” Headings are for organizational purposes only and should not be considered in the substantive construction of the terms of this Agreement.  Any waiver of rights, to be enforceable, must be in writing and signed by the party against whom such waiver is to be enforced, and shall be limited to the specific circumstances giving rise to and expressly addressed by such written waiver. If any portion of this Agreement is held invalid, the parties agree that such invalidity will not affect the validity of the remaining portions of this Agreement.

9.6  No Assignment. Advertiser may not assign or transfer this Agreement or any obligation incurred hereunder, without the prior written consent of Propel Media.  Any attempt to do so without such consent shall be null and void and of no force and effect.

UPDATED: August 27, 2018