Advertiser Terms and Conditions to Digipropz Insertion Order. These Advertiser Terms and Conditions are incorporated by reference into one or more Insertion Order(s) (“IO”) (the IO (s) which together with these Advertiser Terms and Conditions comprise the “Agreement”) by and between Digipropz LLC (“Digipropz”) and Advertiser stated in the IO. The effective date of the Agreement is stated on the IO. Digipropz and Advertiser are individually known as a “Party” and collectively the “Parties”. If there is a conflict between these the Advertiser Terms and Conditions and an IO, the IO shall prevail. Advertiser wishes to engage Digipropz to perform services and the Parties agree as follows:
- Term. The term of this Agreement commences on the date set forth on the IO.
- Termination. Either Party may terminate this Agreement upon 24 hours notice to the other Party. In the event of any termination, Advertiser shall remain liable for any amount due to Digipropz and such obligation to pay shall survive any termination of this Agreement.
- Digipropz’ Records and Final Invoice. All amounts owed by Advertiser to Digipropz will be based solely on Digipropz’ records. Digipropz shall invoice Advertiser based on such records. Advertiser shall pay Digipropz pursuant to the terms below. If Advertiser has an objection to Digipropz’ invoice or the records, Advertiser shall provide such objection to Digipropz. Any objection shall be stated in writing to Digipropz within ten (10) days of receipt of the invoice, otherwise Advertiser waives such objections and such invoice will be deemed final, not subject to dispute, and accepted by Advertiser.
- Terms of Payment.
a. Notwithstanding anything to the contrary herein, Digipropz will invoice Advertiser based on Digipropz’ records. Advertiser will make all payments within fifteen (15) days of date of the applicable invoice. As a condition of Advertiser receiving invoices, Advertiser agrees to provide and maintain the accuracy of Advertiser’s email address and other contact information. All payments will be made in US Dollars. Invoiced amounts and all other amounts payable by Advertiser to Digipropz are exclusive of any applicable tax, duty, levy, or other governmental charge, including but not limited to sales, use, value-added, withholding, and excise taxes (“Taxes”). Advertiser is responsible for payment of all Taxes to the proper taxing or governmental authority, and Advertiser agrees to indemnify and hold Digipropz harmless from and against any claim arising out of Advertiser’s failure to do so.
b. Advertiser authorizes Digipropz, either directly or through third parties, to make any inquiries that Digipropz considers necessary to validate Advertiser’s identity and creditworthiness.
c. Interest will accrue on any past due amounts at the rate of the lesser of 1.5% per month or the lawful maximum.
d. If Advertiser’s payment method fails or Advertiser’s account is past due, Digipropz may collect past due amounts using other collection mechanisms, and Advertiser agrees to pay all expenses associated with such collection, including reasonable attorneys’ fees.
e. Advertiser is responsible for maintaining the security of its account and Advertiser understands that Advertiser will be charged for any activity placed by or through Advertiser’s account. Digipropz will not be liable for any loss or damage arising from Advertiser’s failure to maintain the security or confidentiality of its account. To the fullest extent permitted by law, Advertiser waives all claims against Digipropz related to charges (including any claims related to suspected invalid activity or other actions) unless claimed within 10 days after the charge.
f. Any objection to any invoice shall be stated in writing to Digipropz within ten (10) days of receipt of the invoice, otherwise Advertiser waives such objections and such invoice will be deemed final, not subject to dispute, and accepted by Advertiser. In addition to any other rights or remedies that Digipropz may have, Advertiser’s failure to pay any invoices as set forth herein may result in Digipropz cancelling or pausing Advertiser’s campaigns. If Digipropz agrees to a written request by an Advertiser to send an invoice to a third party on Advertiser’s behalf, Advertiser agrees to remain responsible and liable for payment, and if such third party does not pay the invoice within the stated payment period, Advertiser shall immediately pay all such amounts to Digipropz. - Representations and Warranties.
a. Each party hereto represents and warrants that it has the full power and authority to enter into this Agreement and to consummate the transaction contemplated herein and that the persons executing this Agreement on each party’s behalf have the authority to do so. The parties hereto agree to perform all lawful additional acts, including without limitation, execution of additional stipulations, agreements, documents, and instruments, as are reasonably necessary or as reasonably requested by any party hereto at any time to effectuate the intent of this Agreement, to satisfy the Terms contained herein, or to give full force and effect to this Agreement.
b. Advertiser Representations and Warranties: Advertiser represents and warrants that: (i) it has all necessary rights, licenses, and clearances to enter into this Agreement, to grant the rights granted herein; (ii) any content used or created by Advertiser will not infringe upon the rights of any third party; (iii) it will comply with and ensure that content used or created by Advertiser shall contain all disclosures required by the Federal Trade Commission’s (“FTC”) rules, regulations, guidelines, and other industry standards and practices; and (iv) it will comply with all applicable laws and regulations in its use of the service, and including but not limited to economic sanctions and export control laws and regulations of the United States and, as applicable, other jurisdictions. In addition, Advertiser represents that all the business and payment information provided by it to Digipropz is true, correct, and accurate and that Advertiser is a valid business entity or individual and not a fictitious or nonexistent entity or individual. If Advertiser is a “doing business as” entity, Advertiser agrees that the business entity doing business as Advertiser under this Agreement shall be liable for all of Advertiser’s obligations hereunder and that the person executing this Agreement on behalf of Advertiser agrees to be personally bound to the terms of this paragraph and personally liable for any breach thereof.
c. Digipropz Representations and Warranties: Digipropz represents and warrants that it possesses all the rights and authority necessary for it to enter into this Agreement and to grant the rights granted herein. THE FOREGOING REPRESENTATIONS AND WARRANTIES ARE THE SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY DIGIPROPZ. DIGIPROPZ PROVIDES THE SERVICE “AS IS”. DIGIPROPZ EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
d. ADVERTISER UNDERSTANDS THAT ANY LEADS WHICH IT RECEIVES FROM DIGIPROPZ ARE BEING PROVIDED TO ADVERTISER ‘AS IS’. DIGIPROPZ MAKES NO REPRESENTATIONS THAT LEADS PROVIDED TO ADVERTISER COMPLY WITH TELEPHONE CONSUMER PROTECTION ACT OR ANY OTHER LAW THAT REQUIRES CONSUMER’S CONSENT TO BE CONTACTED. DIGIPROPZ SHALL NOT INDEMNIFY ADVERTISER IN CONNECT WITH LEADS PROVIDED TO ADVERTISER. - Indemnification.
a. Except for that which Advertiser indemnifies Digipropz, Digipropz shall indemnify, defend, save, and hold harmless Advertiser and its parent, subsidiaries, and affiliates, and its and their representatives, officers, directors, agents, and employees, from and against any and all third party claims, damages, fines, penalties, awards, judgments, and liabilities (including reasonable outside attorneys’ fees and costs) (collectively, the “Losses”) resulting from, arising out of, or related to: (i) Digipropz breach or alleged breach of any of Digipropz’ representations or warranties or (ii) a claim that Digipropz’ service violates a third party trademark, trade secret, copyright, or privacy right, except to the extent that such claim arises out of the combination with Advertiser content.
b. Advertiser shall indemnify, defend, save, and hold harmless Digipropz and its parents, subsidiaries, and affiliates, and its and their representatives, officers, directors, agents, and employees, from and against all Losses resulting from, arising out of, or related to (i) Advertiser’s breach or alleged breach of any of Advertiser’s representations, warranties, or agreements; (ii) a claim that Advertiser content or content on Advertiser’s landing page infringes upon, violates, or misappropriates any third party rights, slanders, defames, or libels any person or entity, or does not comply with any applicable law or regulation; (iii) Advertiser’s failure to secure all rights, title, and interest necessary to display the Advertiser content; and (iv) an allegation that Advertiser, Advertiser’s content, content on Advertiser’s landing page, or products or goods being advertised in the Advertiser content violate any applicable law or regulation.
c. The parties agree that in seeking any indemnification hereunder, the party seeking indemnification (the “Claimant”) shall (i) promptly notify the other party (the “Indemnifying Party”) in writing of the claim triggering the indemnification being sought; (ii) grant the Indemnifying Party sole control of the defense (except that the Claimant may, at its own expense, assist in the defense); and (iii) provide the Indemnifying Party, at the Indemnifying Party’s expense, with all assistance, information, and authority reasonably required for the defense of the claim. The Claimant will provide the Indemnifying Party with prompt notice of any claim (provided that the failure to promptly notify shall only relieve Indemnifying Party of its obligation to the extent it can demonstrate material prejudice from such failure) and, at the Indemnifying Party’s expense, provide assistance reasonably necessary to defend such claim. In no event shall the Indemnifying Party enter into any settlement or agree to any disposition of the indemnified claim(s) without the prior written consent of the Claimant, which consent shall not be unreasonably withheld or delayed. In addition, any legal counsel sought to be appointed to defend the indemnified claim(s) shall be subject to the prior written consent of the Claimant, such consent not to be unreasonably withheld or delayed. - Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DIGIPROPZ BE LIABLE TO ADVERTISER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES. DIGIPROPZ’ TOTAL LIABILITY TO ADVERTISER UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID OR ACCRUED BY ADVERTISER TO DIGIPROPZ UNDER THIS AGREEMENT DURING THE FOUR (4) WEEKS PRIOR TO THE DATE OF THE INITIAL EVENT GIVING RISE TO THE LIABILITY.
- Confidentiality. Each party shall disclose Confidential Information (as defined below) only to those of its representatives, officers, directors, agents, professional advisors, on-site contractors, and employees, and those of its parents, subsidiaries, and affiliates, who (i) are bound by written restrictions on use and disclosure and other confidentiality protections and (ii) the party believes have a need to know such information as required for the performance of this Agreement or to enforce the terms of this Agreement. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party (a) to enforce the terms of this Agreement; (b) pursuant to a court order from a court of competent jurisdiction or subpoena, provided that the party required to make such a disclosure gives reasonable prior written notice to the other party so that it may contest such order or subpoena and, in the event that disclosure is required, only discloses the portion of Confidential Information that is legally required; or (c) pursuant to a regulatory investigation or enforcement. “Confidential Information” consists of (a) any technical information or plans or any software or other technology of Digipropz; (b) any financial information of the other party; (c) other information disclosed by one party to the other party that is marked as confidential or should reasonably be assumed to be confidential under the circumstances; and (d) the content of this Agreement. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault of or breach of the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) is obtained by the receiving party rightfully from a third party that has no duty of confidentiality to the disclosing party.
- Availability of the Service. Digipropz makes no representations regarding the availability of the its service and Advertiser acknowledges and agrees that the service may be unavailable from time to time due to (i) equipment, software, or service malfunctions; (ii) maintenance and update procedures or repairs; or (iii) causes beyond the control of Digipropz or its affiliates, including, without limitation, interruption or failure of telecommunication or digital transmission links, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion, or other failures, and that Digipropz shall not be liable for any unavailability caused by any of the foregoing.
- Dispute Resolution. This Agreement shall be governed by the State of Texas without respect to choice of law rules. The Parties consent to have all disputes regarding this agreement resolved by binding arbitration before the American Arbitration Association, Commercial Division. The parties agree to conduct the arbitration exclusively in Travis County, Texas. The Parties specifically waive any international treaties or other international law which may govern the court or location of resolution of any dispute between them. This provision was a bargained for relinquishment of both Parties rights to jurisdiction in their respective states or countries. Digipropz shall be entitled to recover all reasonable costs of collection (including attorney’s fees, in-house counsel costs, expenses and costs) incurred in attempting to collect payment from Advertiser. The prevailing party in any Arbitration shall be entitled to an award of attorney fees and costs for such arbitration. Notwithstanding the foregoing, in the event of Advertiser’s default of its obligations for payment, Digipropz shall have the right, if it so chooses, to commence an action against Advertiser for such default in the appropriate court in the venue and jurisdiction in which Advertiser resides or maintains assets.
- Non-Solicitation. During the term of this Agreement and for a period of two (2) years after termination of this Agreement, Advertiser shall not solicit Digipropz employees, the identities of which may be disclosed during the term of the Agreement. In addition to Digipropz rights and remedies under this Agreement or at law, Advertiser agrees that monetary damages for a breach of or a threatened breach of this Section will not be adequate and that Digipropz shall be entitled to injunctive relief (including temporary and preliminary relief). In addition to any other remedies available to Digipropz, if Advertiser shall employ a Digipropz employee in violation of this Agreement then Digipropz shall be entitled to liquidated damages of two times the employee’s current salary.
- Notices and Disclosures. Advertiser affirms that it is in good standing with ALL regulatory agencies including, but limited to, BBB, FTC, and all State Attorney General Offices. If for any reason Advertiser is no longer in good standing with any regulatory agency or is under investigation by any regulatory agency, Advertiser has three (3) business days to inform Digipropz in writing of such matter. Failure to do so will constitute an immediate breach of the agreement and will be cause for termination of this Agreement.
- Joint and Several Liability. Advertiser and its agency (if applicable) shall be jointly and severally responsible under this Agreement, if specifically permitted in writing by Digipropz.
- No Assignment. Neither Party shall have the right to assign or otherwise transfer its rights nor obligations under this Agreement except with the prior written consent of the other Party; provided, however, that a successor in interest by merger, purchase or otherwise of all or substantially all the business of a Party may acquire its rights and obligations hereunder. Any prohibited assignment shall be null and void.
- Modification. Digipropz may modify all or any part of this Agreement, at any time and at its sole discretion. Not terminating the Agreement by Advertiser will constitute Advertiser’s unconditional acceptance of the modification to this Agreement.
- Miscellaneous. This Agreement constitutes the complete and exclusive understanding and agreement between the Parties regarding the subject matter herein and supersedes any and all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. The failure of either Party to enforce strict performance by the other party of any provision in this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of that party’s right to do so at any later point. No click-through, online, purchase order or other terms, entered into before or after the execution of this Agreement, will inform the interpretation of this Agreement, or be or remain binding on the parties, and they shall be void. Preprinted terms in Advertiser purchase orders or other customer-generated ordering documents, or terms referenced or linked within them, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed by Digipropz and/or purport to take precedence over this Agreement. In the event that any provision in this Agreement, including its Terms, as applied to any party or to any circumstance, shall be adjudged by a court of competent jurisdiction to be void, unenforceable or inoperative as a matter of law, then the same shall in no way affect any other provision in this Insertion Order, including its Terms, the application of such provision in any other circumstance or with respect to any other party, or the validity or enforceability of this Agreement as a whole.