InspireMore Advertising Terms and Conditions. Last modified on March 31, 2016
These Advertising Terms and Conditions (“Terms and Conditions”) are made a part of that certain service order entered into on the Effective Date by and between SV Inspire More, LLC (“InspireMore”), and the Advertiser (the “Service Order”). The Service Order is incorporated herein as if fully set forth. Capitalized terms not defined herein shall have the meaning ascribed to them in the Service Order. If a conflict exists between these Terms and Conditions and the Service Order, the terms of these Terms and Conditions shall take precedence.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the sufficiency of which is hereby acknowledged by the Parties, the Parties hereto agree as follows:
1.1 InspireMore’s Services. InspireMore agrees to promote the Advertiser’s product or services by showing banners, taglines, text links or email creative (collectively referred to herein as “Links”) provided by the Advertiser on site(s) across the InspireMore’s online platform, including social media properties owned by InspireMore (collectively referred to herein as “Online Platform”) beginning on the Commencement Date and terminating on the Termination Date (the “Term”). The Parties agree that the services described in this Section 1.1 are the only services to be performed by InspireMore. Advertiser agrees that InspireMore may, but is not obligated to, display the Links across the entire InspireMore advertising network or on specific site(s) at InspireMore’s discretion. Daily Campaign activity for each Service Order begins at 12:01 AM Central Time. InspireMore may, at its option, modify the flight date of a Service Order if the Links: (a) are not delivered on time; (b) there are delays due to third party ad-serving; (c) inventory fluctuation; or (d) other issues arise.
1.2 Payment. The Parties agree to place a tracking pixel, approved by the Parties, to calculate visits, pageviews or clicks resulting from InspireMore’s placement of the Links across the Online Platform (“Visits”). The Parties further agree to use a reliable tracking method (Google Analytics, Facebook Clicks, or the like) to provide accuracy and transparency in calculating the Visits and the resulting Payment. The Payment shall be calculated as agreed by the Parties and specified in the Service Order, and may be on a Cost-Per-Click, a Cost-Per-Mil or a share of revenue. Advertiser agrees to deliver to InspireMore the detailed Payment calculation to InspireMore within the time period indicated in the Service Order. InspireMore shall confirm the data provided by Advertiser and deliver to Advertiser an invoice each month reflecting the confirmed Payment calculation (each an “Invoice”). Advertiser agrees to pay each Invoice in accordance with its terms. Advertiser must communicate any objections related to an Invoice in writing to InspireMore within fifteen (15) days of receipt of the applicable Invoice (“Objection Deadline”). Failure to deliver any objection by the Objection Deadline constitutes acceptance of, and satisfaction with, such Invoice.
1.3 Termination. Either Party may terminate these Terms and Conditions immediately on the Termination Date. Any payment obligations shall survive termination along with any other provisions herein that, by their nature, should survive termination.
1.4 Absolute Right to Reject Links. InspireMore reserves the right to reject, discontinue, or omit any Links or any part thereof. This right shall not be deemed to have been waived by acceptance or actual use of any Links. InspireMore may reject any Links that InspireMore feels in its sole and absolute discretion is not in keeping with its standards for any reason. InspireMore is not liable for errors in the position and/or placement of the Links, or typographic errors of any kind.
1.5 Modifications to Links. Advertiser agrees to allow InspireMore to make minor changes or alterations to text link copy solely for the purpose and intent of matching it to the medium of delivery. If Advertiser reasonably determines that the placement of any Links by InspireMore hereunder harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, including, but not limited to association with web sites that contain indecent, illegal, misleading, harmful, abusive, harassing, libelous, defamatory, or other offensive materials, then InspireMore shall use commercially reasonable efforts to remove such advertisement promptly following Advertiser’s written notice thereof to InspireMore; provided, however, that if InspireMore reasonably believes that removal of a Link from the Online Platform will have a material impact on InspireMore’s ability to deliver the services herein, InspireMore may condition such compliance on Advertiser providing an extension of the Campaign.
1.6 Independent Contractors. The Parties’ relationship shall be that of independent contractors. This Agreement shall not create any franchise, fiduciary, agency, partnership, joint venture, employment or special relationship between the Parties. Neither Party, nor the Party’s employees, agents or representatives will be, or be deemed to be, employees, agents or representatives of the other Party for any purpose, including, without limitation, federal or state tax purposes.
1.7 No Agency Relationship. The Parties acknowledge that neither Party shall have any authority to create an obligation, express or implied, on behalf of the other, except as expressly set forth herein. This Agreement does not create any agency relationship and neither Party is authorized to act for or on behalf of the other Party, or to bind the other Party in any manner or fashion, except per these Terms and Conditions.
1.8 Taxes. Each Party agrees to pay its own applicable federal and/or state taxes and all local excise, sales, use, or other taxes which arise as a result of the services performed under these Terms and Conditions.
1.9 Intellectual Property. Notwithstanding anything to the contrary in these Terms and Conditions, each Party (each a “Holding Party”) shall retain all right, title and interest in and to any and all its intellectual property, whether based on state, federal, international or foreign laws, including, without limitation, all patents; trademarks, whether or not federally registered; copyrights; trade secrets; proprietary information; and the like, as well as all applications, to any agency, for perfection of such rights (collectively the “Intellectual Property”). Nothing in these Terms and Conditions shall be interpreted as assigning or otherwise transferring any ownership interest in the Holding Party’s Intellectual Property to the other Party (the “Receiving Party”) or any third party. To the extent the Receiving Party has or obtains any ownership interest in any of the Holding Party’s Intellectual Property for any reason, Receiving Party agrees to assign or otherwise transfer, and hereby does assign and transfer, any and all such ownership interest to Holding Party. Receiving Party will also provide any reasonable amount of assistance necessary to transfer, perfect, and protect any proprietary rights in such of Holding Party’s Intellectual Property. Receiving Party agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other Intellectual Property of Holding Party.
1.10 Confidential Information.
(a) Each Party acknowledges that it may receive confidential information and trade secrets (collectively, “Confidential Information”) from the other Party in the course of carrying out the actions contemplated by these Terms and Conditions. During the period these Terms and Conditions are in effect, and at all times afterwards, each Party, its employees, contractors, consultants, and agents, will (i) safeguard the other Party’s Confidential Information with the same degree of care that it uses to protect its own Confidential Information; (ii) maintain the confidentiality of this information; (iii) not use such information except as permitted under these Terms and Conditions; and (iv) not disseminate, disclose, sell, publish, or otherwise make available this information to any third party without the prior written consent of the disclosing Party.Section 1.14(a), above, does not apply to any information that (i) is already lawfully in the receiving Party’s possession (unless received pursuant to a nondisclosure agreement); (ii) is or becomes generally available to the public through no fault of the receiving Party; (iii) is disclosed to the receiving Party by a third party who may transfer or disclose such information without restriction; (iv) is required to be disclosed by the receiving Party as a matter of law (provided that the receiving Party will use all reasonable efforts to provide the disclosing Party with prior notice of such disclosure and to obtain a protective order); (v) is disclosed by the receiving Party with the disclosing Party’s approval; and (vi) is independently developed by the receiving Party without any use of Confidential Information. In all cases, the receiving Party will use all reasonable efforts to give the disclosing Party ten (10) days prior written notice of any disclosure of information under these Terms and Conditions.
(b) Section 1.14(a), above, does not apply to any information that (i) is already lawfully in the receiving Party’s possession (unless received pursuant to a nondisclosure agreement); (ii) is or becomes generally available to the public through no fault of the receiving Party; (iii) is disclosed to the receiving Party by a third party who may transfer or disclose such information without restriction; (iv) is required to be disclosed by the receiving Party as a matter of law (provided that the receiving Party will use all reasonable efforts to provide the disclosing Party with prior notice of such disclosure and to obtain a protective order); (v) is disclosed by the receiving Party with the disclosing Party’s approval; and (vi) is independently developed by the receiving Party without any use of Confidential Information. In all cases, the receiving Party will use all reasonable efforts to give the disclosing Party ten (10) days prior written notice of any disclosure of information under these Terms and Conditions.
1.11 Advertiser’s Representations and Warranties. In addition to other representations and warranties of Advertiser herein, Advertiser represents and warrants: (a) Advertiser has full power and authority to approve, execute and deliver these Terms and Conditions; (b) no other proceedings on the part of Advertiser are necessary to approve and authorize the execution and delivery of these Terms and Conditions; (c) these Terms and Conditions have been duly and validly executed and delivered by Advertiser and constitutes the legal, valid and binding obligation of Advertiser enforceable against Advertiser in accordance with its terms; (d) Advertiser is not subject to or obligated under any applicable law of any governmental entity, or any agreement or instrument, or any license, franchise or permit, or subject to any order, writ, injunction or decree, which would be breached or violated by its execution, delivery or performance of these Terms and Conditions; and (e) Advertiser is authorized to publish the entire contents and subject matter thereof.
1.12 InspireMore’s Representations and Warranties. InspireMore represents and warrants that: (a) InspireMore is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation; (b) InspireMore has full power and authority to approve, execute and deliver these Terms and Conditions; (c) no other proceedings on the part of InspireMore are necessary to approve and authorize the execution and delivery of these Terms and Conditions; and (d) these Terms and Conditions have been duly and validly executed and delivered by InspireMore and constitutes the legal, valid and binding obligation of InspireMore enforceable against InspireMore in accordance with its terms.
1.13 Limitation of Liability. Notwithstanding anything else in these Terms and Conditions, in no event shall InspireMore be liable to Advertiser to any other person or entity with respect to any subject matter of these Terms and Conditions, under any equity, common law, tort, contract, estoppel, negligence, strict liability or other theory, for any (a) incidental, special, punitive, consequential or indirect damages or (b) damages resulting from loss of sale, business, profits, opportunity or goodwill, even if the remedies provided for in these Terms and Conditions fail of their essential purpose and even if the Parties have been advised of the possibility of any of the foregoing damages; provided, however, that this Section shall not apply to or otherwise limit the damages arising out of or related to any fraud, willful misconduct, or any third party indemnification claim.
1.14 Indemnification. Advertiser agrees to indemnify, defend and hold InspireMore, its publishers or lists providers and its respective partners, employees, officers, agents, directors and representatives harmless from and against any and all fines, claims, costs, expenses (including attorney’s fees and costs, expert fees and court costs), demands, damages, penalties and/ or interest and costs of audit, actions, causes of action and other liabilities of every kind and nature, whether in contract, tort, equity or otherwise, whether statutory or common law (each a “Claim”) which InspireMore may suffer or incur, directly or indirectly as a result of: a) the negligence, gross negligence or willful misconduct of InspireMore; b) the breach of these Terms and Conditions or any breach of representation or warranty by Advertiser; c) any violation of law, regulation or ordinance committed by Advertiser; (d) any libel, defamation, violation of rights of privacy, plagiarism, trademark violations, or copyright infringement committed by Advertiser; or (e) Advertiser’s unauthorized use of content (including text, illustrations, representatives, sketches, maps, labels, or other copyrighted matter) contained in Links or the unauthorized use of any person’s name or photograph, arising from InspireMore reproduction and publishing of such Links pursuant to Advertiser’s submission.
1.15 Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be sent by electronic mail, registered or certified mail, postage prepaid, or overnight courier, to the address of each Party as set forth in the Service Order. Either Party may change its address for receiving notice by written notice given to the other Party.
1.16 Books and Records; Access. Advertiser shall keep accurate and complete accounts and records regarding the transactions contemplated by these Terms and Conditions and each Service Order (“Records”), and agrees to submit such Records to InspireMore upon reasonable request therefor.
1.17 Force Majeure. InspireMore is not liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, or any condition beyond InspireMore control affecting production or delivery in any manner.
1.18 Governing Law and Venue. This Agreement, the entire relationship of the Parties, and any litigation between the Parties (whether grounded in contract, tort, statute, law, or equity) shall be interpreted, construed, and enforced in accordance with the laws of the State of Tennessee, without regard to its choice of law principles. The courts of the District of Tennessee, located in Nashville, Tennessee, federal or state, shall have exclusive jurisdiction of all legal actions arising out of the Agreement.
1.19 Waiver; Remedies Cumulative. The rights and remedies of the Parties hereunder are cumulative and not alternative. Neither any failure nor any delay by any Party in exercising any right, power or privilege under these Terms and Conditions shall operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege shall preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.
1.20 Severability. If any provision of these Terms and Conditions, or the application of any such provision to any person, entity or circumstance, is held to be unenforceable or invalid by any court of competent jurisdiction or under any applicable law, the validity and enforceability of the remaining provisions of these Terms and Conditions shall not be affected thereby. Without limiting the foregoing, the covenants and obligations contained in these Terms and Conditions shall be construed as separate covenants and obligations, covering their respective subject matters. Each breach of a covenant or obligation set forth in these Terms and Conditions shall give rise to a separate and independent cause of action.
1.21 Entire Agreement; Modification. These Terms and Conditions along with each Service Order executed by the Parties constitute the entire and final agreement among the Parties with respect to the subject matter hereof, and supersede and replace all prior agreements, understandings, commitments, communications and representations made between the Parties, whether written or oral, with respect to the subject matter hereof. This Agreement may not be amended, supplemented, or otherwise modified except by a written agreement executed by both Parties.
1.22 No Assignment; Successors and Assigns; No Third-Party Rights. Advertiser may not assign any or all of its rights under these Terms and Conditions, or any Service Order, to any person or entity without the prior written consent of InspireMore. Any attempted assignment or assumption without such written consent shall be null and void and without legal effect. Subject to the foregoing, these Terms and Conditions shall apply to, be binding in all respects upon and inure to the benefit of the heirs, executors, personal representatives, successors and assigns of the Parties. Nothing expressed or referred to in these Terms and Conditions shall be construed to give any Person other than the Parties any legal or equitable right, remedy or claim under or with respect to these Terms and Conditions or any provision of these Terms and Conditions.
1.23 Execution of Agreements. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original copy and all of which, when taken together, shall be deemed to constitute one and the same agreement. The exchange of copies of these Terms and Conditions and of signature pages by electronic mail or facsimile transmission shall constitute effective execution and delivery of these Terms and Conditions as to the Parties and may be used in lieu of the original Agreement for all purposes. Signatures of the Parties transmitted by electronic mail or facsimile shall be deemed to be their original signatures for all purposes.
