DEFINITIONS
”Advertising Material” means the text, graphics, logos, designs, trademarks and copyrights for any type of advertising including, but not limited to, buttons, banners, text-links, pop-ups, and pop-unders created by an Advertiser or CPX on behalf of the Advertiser.
“CPX Network” means the advertising network owned and operated by CPX.
“Order” means an insertion order that is submitted by Advertiser to CPX and is accepted by CPX, or an online order submitted by Advertiser via the Internet, and is accepted by CPX.
“User Action” means a completed action by the Advertiser, such as the completion of a lead form or product purchase.
AGREEMENT
Section 1. Appointment. Advertiser hereby appoints CPX as its agent to place its Advertising Materials through the CPX Network according to the specifications in particular Orders issued hereunder.
Section 2. Orders.
2.1. Orders. From time to time, the parties may negotiate the terms of Orders under which Advertiser will deliver Advertising Material to the CPX Network for advertising campaigns. Each Order shall specify: (a) the type(s) and amount(s) of inventory to be delivered (e.g., impressions, clicks or other desired actions) (the “Deliverables”); (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent pursuant to the Order (if applicable), (d) the start and end dates of the campaign, and (e) the identity of and contact information for any third party ad server ("Third Party Ad Server"), if applicable. Other items that may be included are, but are not limited to: reporting requirements such as impressions or other performance criteria; any special Ad delivery scheduling and/or Ad placement requirements; and specifications concerning ownership of data collected.
Acceptance of the Order and these Terms and Conditions will be made upon the earlier of (a) written (which, unless otherwise specified, for purposes of these Terms and Conditions shall include paper, fax, or e-mail communication) approval of the Order by CPX and Advertiser; or (b) the display of the first Ad impression by CPX, unless otherwise agreed upon in the Order.
2.2. Adjustments to Orders. The parties may make adjustment to Orders, via revised insertion orders, as that term is generally understood in the industry, when signed by both parties or when accepted via e-mail. These adjustments to Orders shall be effective upon Advertiser’s receipt of CPX’s acceptance of the change, and when signed by both parties or when accepted via e- mail. CPX will make commercially reasonable efforts to notify Advertiser within two business days of receipt of an Order signed by Advertiser if the specified inventory is not available.
2.3. Ad Placement and Positioning.
A. CPX shall comply with the Order, including all Ad placement restrictions, requirements to create a reasonably balanced delivery schedule, and provide within the scope of the Order, an Ad to a site on the CPX Network specified on the Order when such CPX Network is called up by an Internet user. Any exceptions must be approved by Advertiser in writing.
B. CPX will use commercially reasonable efforts to provide Advertiser at least 10 business days, prior notification of any material changes to the CPX Network that would change the target audience or significantly affect the size or placement of the Ad specified in the affected Order. Should such a modification occur with or without notice, as Advertiser’s and Advertiser’s sole remedy for change or notice, Advertiser may immediately cancel the remainder of the Order without penalty within the 10-day notice period. If CPX has failed to provide such notification, Advertiser may cancel the remainder of the Order within 30 days of such modification, and in such case shall not be charged for any affected Advertising Materials delivered after such modification.
C. CPX will submit or otherwise make electronically accessible to Advertiser within two business days of acceptance of an Order final technical specifications, as agreed upon by the parties. Changes to the specifications of the already- purchased Advertising Materials after that two business day period will allow Advertiser to suspend (without impacting the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either (i) send revised artwork, copy, or active URLs (“Advertising Materials”); (ii) request that CPX resize the Ad at CPX’s cost, and with final creative approval of Advertiser, within a reasonable time period to fulfill the guaranteed levels of the Order; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within 5 business days, immediately cancel the remainder of the Order for the affected Ad without penalty.
D. Ad delivery shall comply with editorial adjacencies guidelines stated on the Order. As Advertiser’s and Advertiser’s sole remedy for a violation of the foregoing sentence: (i) Advertising Materials that run in violation of such editorial
adjacencies guidelines, if CPX is notified of such violation within 30 days of the violation, shall be non-billable; and (ii) after Advertiser notifies CPX that specific Advertising Materials are in violation of such editorial adjacencies guidelines, CPX will make commercially reasonable efforts to correct within 24 hours such violation. In the event that such correction materially and adversely impacts such Order, the parties will negotiate in good faith mutually agreed changes to such Order to address such impacts. In the event that the parties cannot reach agreement on such changes within five business days from the implementation of such correction, Advertiser or CPX may, upon the conclusion of such 5 business day period, immediately cancel such Order, without penalty.
2.4 Order Cancellation.
A. Cancellation Without Cause. Advertiser may, in its sole discretion, cancel an Order, without cause, by giving notice via e-mail, telephone or fax, to CPX within 96 hours after the date of the Order. If Advertiser so cancels an Order, all unfulfilled contractual commitments subsequent to the 96-hour notice period shall become null and void, and Advertiser shall pay CPX only for Advertising Material delivered through the end of the 96-hour notice period.
B. Cancellation With Cause. In addition, each party shall have the right to terminate each Order, and/or this Agreement, upon the other party’s material breach, by giving written notice of termination, which termination shall be effective 7 days after the breaching party’s receipt of such notice unless the breaching party completely cures such material breach within such 7-day period.
2.5 Reporting.
A. CPX shall, within 2 business days of the start date on the Order, provide confirmation to Advertiser, either electronically or in writing, stating whether the components of the Order have begun delivery.
B. CPX shall make reporting available according to its regular procedures, either electronically or in writing, unless otherwise specified in the Order. Reports shall be broken out in intervals of CPX’s discretion (unless specified in an Order).
C. Once CPX has provided the online or electronic report, it agrees that Advertiser is entitled to reasonably rely on it, subject to receipt of CPX’s invoice for such period.
D. In the event that CPX fails to deliver an accurate and complete report by the time specified, Advertiser may initiate makegood discussions pursuant to Section 2.6 below.
E. In the event that CPX learns that it has delivered an incomplete or inaccurate report, or no report at all, CPX shall cure such failure within 5 business days. Failure to cure may result in nonpayment for all activity for which data are incomplete or missing, until CPX delivers reasonable evidence of performance and such report shall be delivered within 30 days of CPX’s learning of such failure or absent such knowledge, within 180 days of delivery of all Deliverables.
2.6 Makegoods.
A. CPX shall monitor delivery of the Advertising Materials, and shall notify Advertiser either electronically or in writing as soon as possible as (and no later than two weeks before Order end date unless the length of the campaign is less than two weeks) if CPX believes that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for makegood consistent with these Terms and Conditions.
B. In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the Order, and/or if there is an omission of any Advertising Material, Advertiser and CPX will make an effort to agree upon the conditions of a makegood flight either in the Order or at the time of the shortfall. If no makegood can be agreed upon, Advertiser may execute a credit equal to the value of the under-delivered portion of the Order for which it was charged. In the event that Advertiser has made a cash prepayment to CPX, specifically for the campaign Order for which under-delivery applies, then if Advertiser is reasonably current on all amounts owed to CPX under any other agreement for such Advertiser, Advertiser 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 shall CPX provide a makegood or extend any Advertising Material beyond the period set forth in the Order without prior written consent of Advertiser.
2.7 Bonus Impressions.
A. Where Advertiser utilizes a Third Party Advertising Server, CPX will not bonus more than 10% above the Deliverables specified in the Order without prior written consent from Advertiser. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless the Order establishes an impression cap for Third Party
Advertising Server activity. Advertiser will not be charged by CPX for any additional Advertising Materials above any level guaranteed or capped in the Order. If a Third Party Advertising Server is being used and Advertiser notifies CPX that the guaranteed or capped levels stated in the Order have been reached, CPX will use commercially reasonable efforts to suspend delivery and, within 48 hours, may either (1) serve any additional Advertising Materials itself or (2) be held responsible for all applicable incremental Advertising Materials serving charges incurred by Advertiser after such notice has been provided and associated with over-delivery by more than 10% above such guaranteed or capped levels.
B. Where Advertiser does not utilize a Third Party Advertising Server, CPX may bonus as many advertising units as CPX chooses unless otherwise indicated on the Order. Advertiser will not be charged by CPX for any additional advertising units above any level guaranteed in the Order.
Section 3. Invoicing and Payment.
3.1. Credit Determination. Before CPX’s acceptance of the first Order from Advertiser, CPX shall make a credit determination concerning Advertiser and use that determination in order to establish the level of Orders that it will accept from Advertiser for a campaign. Any advertiser, who has exhausted their credit limit, shall owe any outstanding balances on an immediate pay (net 5) basis and shall be subject to campaign stoppage until receipt of said payments. In the case CPX determines that the creditworthiness of he Advertiser is not sufficient, the Advertiser will be required to pre-pay its advertising campaign up to a level agreeable by both parties.
3.2. Invoices. CPX may invoice Advertiser on the first day of the contract period set forth in the Order, but payment by Advertiser is not contingent upon receiving CPX’s invoice. Invoices are to be sent to Advertiser’s billing address as set forth in the Order and must include information reasonably specified by Advertiser such as the Order number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the Order. All invoices pursuant to the Order must be received within 180 days of delivery of all Deliverables.
3.3. Invoice Disputes. Unless Advertiser objects to CPX’s invoice within seven (7) calendar days, the amount invoiced shall be final and binding. Advertiser may only dispute invoices if it has a reasonable basis for such dispute, which can be proven by written documentation. To the extent Advertiser intends to dispute an invoice, Advertiser shall provide a written report to CPX, within two (2) business days identifying, in detail, the discrepancies, between the invoiced amount and Advertiser’s evidence.
CPX may consider such report, but shall have final authority in determining the correct amount.
3.4. Payment Calculations. One of the following methods shall apply to the calculation of payments, as specified in each Order:
A. Cost Per Thousand (CPM). CPM is a fixed rate type of advertising, for which CPX shall record the per-thousand counts of impressions or traffic based solely on CPX’s data, and multiply the count by the dollar rate specified in the Order. The total of said calculation shall be payable to the Publisher as provided herein.
B. Cost Per Action (CPA). CPA calculations are based on the action dollar rate specified in the Order . Advertiser shall insert tracking pixels on the confirmation page for each advertisement to be delivered hereunder. Advertiser will provide CPX with a link to the confirmation page where CPX can view the pixel for approval prior to initiating the advertising campaign. Payment will be made based on CPX’s calculations of the higher of the number of leads from the CPX or Advertiser statistics based on the tracking pixel. All such records provided by Advertiser shall be the sole property of Advertiser.
C. Cost Per Click (CPC). CPC calculations are based on the click dollar rate specified in the Order. Payment will be made based on CPX’s calculations of the higher of the number of clicks from the CPX or Advertiser statistics based on the tracking pixel. All such records provided by Advertiser shall be the sole property of Advertiser.
3.5. User Action. To the extent that payments are based on a User Action, CPX may, in its sole discretion and if requested by the Advertiser, transfer User Action data that provides the basis for an invoice to Advertiser.
3.6 Non-Viable Leads. Unless otherwise provided in the Order or Campaign Worksheet, no offsets or chargeback’s may be taken for any non-viable or duplicate leads. CPX shall determine in its sole discretion what constitutes a non-viable lead. Without limiting the breadth of the foregoing, non viable leads shall include, but not be limited to, leads with incomplete contact information (no e-mail address, no phone number, no physical address), leads from non-United States citizens, leads from consumers under 18 years of age, etc. It is the responsibility of the Advertiser to insure that the Order or Campaign Worksheet accurately reflects the leads sought.
3.7 Payment. CPX’s payment terms are net thirty (30) days from the Invoice date (which shall be the first day of the month following the month of services), or as otherwise stated in a payment schedule set forth in the Order. Amounts paid after such date shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). In the event of any failure by Advertiser, Agency or Agency’s clients to make payment, Advertiser, Agency or Agency’s clients will be responsible for all reasonable expenses (including attorneys’ fees) incurred by CPX in collecting such amounts. CPX’s charges shall be based upon CPX’s reports for impression/clicks, or pursuant to such other procedures established in the Insertion Order. If the Advertiser’s, credit is or becomes impaired, CPX will require payment in advance.
3.8. Advertiser’s Liability. In the event that an Agency executes this Agreement on behalf of its clients, such party executing this Agreement as agent shall be jointly and severally liable with the clients for all covenants and amounts owing hereunder. Agency shall cause all clients for which it places Advertising Materials on the CPX Network to agree in writing to be bound by these terms and conditions.
Section 4. Advertising Materials.
4.1. Delivery of Advertising Materials. Advertiser will provide to CPX all Advertising Materials in accordance with CPX’s then- current policies. If and to the extent that the delivered Advertising Materials do not conform to CPX’s current format specifications, Advertiser shall be responsible for providing CPX with materials that meet CPX’s technical specifications. In the event that Advertiser does not provide CPX with compliant materials, CPX reserves the right to make technical modifications as necessary to confirm the Advertising Materials with such specifications. CPX hereby grants to advertiser a non-exclusive, nontransferable, royalty-free worldwide license to use any and all such technical modifications to the Advertising Materials created by CPX (the “CPX Work Product”).
4.2. License. For the Term of this Agreement and the purposes stated hereunder, Advertiser hereby grants to CPX a non- exclusive, royalty-free, worldwide license to reproduce, distribute, create derivative works of, publicly perform, publicly display and digitally perform the Advertising Materials and its constituent parts, including trademarks, service marks, logos or other commercial product or service designations (collectively “Marks”) contained in the Advertising Materials. Advertiser also grants to CPX the limited right to use any and all images of the Advertising Materials and Advertiser’s Marks for the purposes of its marketing, promotion and content directories or indexes, and in electronic or printed advertising, publicity, press releases, newsletters and mailings about CPX’s website or CPX. CPX may make a reasonable number of archival or back-up copies of the Advertising Materials. Except with respect to the Advertising Materials, title to and ownership of all intellectual property rights relating to the CPX’s website and the CPX’s Work Product shall remain with CPX.
4.3. CPX’s Discretion to Create Additional Advertising Materials. From time to time, CPX may determine that additional or revised Advertising Materials may be required to enhance the effectiveness of Advertiser’s campaign on the CPX Network for a specific Order. In consultation with the Advertiser, CPX shall have the discretion to create additional or changed Advertising Materials for the Order at no additional cost to the Advertiser. All intellectual property rights for such Advertising Materials shall belong to the Advertiser, subject to the licenses granted to CPX in Sections 4.1 and 4.2 above.
4.4. Recording of Service Counts. CPX shall have the sole responsibility for calculation of statistics and User Actions, including impressions and click-through numbers. Greenwich Mean Time (GMT) shall be the time period for traffic and tracking purposes.
4.5. Unacceptable Advertising Materials. CPX reserves the absolute right to refuse in its sole discretion to accept Advertising. The following are examples of Advertising Material that CPX will not accept:
A. material that infringes the rights of others (including but not limited to copyright and other intellectual property rights) or which promotes copyright piracy (i.e., unauthorized MP3s, roms, 'warez', emulators, or cracks, etc.)
B. material that contains pornography, adult content, sexual or erotic material
C. material with gratuitous displays of violence, obscene or vulgar language, and abusive content or content which endorses or threatens physical harm
D. material that promotes any type of hate-mongering (i.e., racial, political, ethnic, religious, gender-based, sexuality- based or personal, etc.)
E. material that promotes any type of illegal substance or activity (i.e., how to build a bomb, hacking, 'phreaking', etc.) F. material that contains any content violating Federal privacy laws, including the Children’s Online Privacy Protection Act.
4.6 Third Party Server Tags. When applicable, Third Party Advertising Server tags shall be implemented so that they are functional in all aspects.
4.7 Trade Marks, Service Marks and Trade Names. CPX, on one hand, and Advertiser, on the other, will not use the other’s trade name, trademarks, logos or Advertising Materials in a public announcement (including, but not limited to, through any press
release) regarding the existence or content of these Terms and Conditions or an Order without the other’s prior written approval.
Section 5. Representations and Warranties.
5.1 Advertiser represents and warrants to CPX that:
A. It is solely responsible for any legal liability arising out of or relating to the Advertising Material to which users can link through the CPX Network; and
B. Neither the Advertising Material, as provided to CPX, nor any website to which such Advertising Materials shall link will (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any applicable law, statute, ordinance or regulations, including without limitation the laws and regulations governing export control; (c) be or contain material which is defamatory or trade libelous; (d) be or contain material which is lewd, pornographic or obscene; (e) violate any laws regarding unfair competition, antidiscrimination or false advertising; (f) promote violence or hate speech; or (g) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines; and
C. It is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply; and it will conduct its business in compliance with all applicable laws, rules and regulations; and
D. It has full legal power and authority under its organizational documents (1) to enter into this Agreement; and (2) to grant to CPX the rights, permissions, privileges and licenses granted herein, without reservation or restriction; and (3) to perform the obligations contained herein; and
E. The execution of this Agreement and the performance of its obligations by Advertiser will not conflict with or a cause a breach or violation of any agreement, law, regulation or other obligation to which Advertiser is a party or subject.
5.2 Advertiser represents and warrants that it has the authority to be bound to these Terms and Conditions and each Order.
Advertiser agrees to defend, indemnify and hold harmless CPX its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of Advertiser’s alleged breach of the foregoing sentence
.
Section 6. Term and Termination..
A. Term. Subject to the early termination rights of either party herein, the term of this Agreement shall be 1 year from the date first written above; and it shall renew automatically for subsequent one-year periods unless either party notifies the other at least 30 days before the end of the then-Term that it does not wish to renew the Agreement.
B. Termination Without Cause. Notwithstanding Section 6.A above, either party may terminate this Agreement at anytime for any or no reason whatsoever, upon 30 days prior written notice to the other party. Notice may be provided via e- mail or any other public means and will be effective 30 days after its transmission.
C. Termination With Cause. Notwithstanding Sections 6.A and B above, either party may terminate this Agreement at any time if the other party is in material breach of its obligations hereunder that is not cured within 10 days after written notice thereof from the non-breaching party, except as otherwise stated in this Agreement with regard to specific breaches..
D. Consequences of Termination. Notwithstanding the termination of this Agreement, or any Order issued hereunder, each party shall be liable to the other for any amounts due under an Order up to the date of the termination. Additionally, the provisions of Sections 5, 7, 8,10 and 11 shall survive the termination of this Agreement or any Order issued hereunder. Upon termination of this Agreement or any Order issued hereunder CPX shall remove the Advertising Materials from the CPX Network and return them to Advertiser with reasonable promptness.
Section 7. Limitation of Liability. In the event that CPX does not deliver the number of page views stated in the Order in the time period allotted by the Order, the sole liability of CPX to Advertiser shall be limited to the obligation, upon CPX’s final determination, to either (a) continue to deliver the advertisement until it garners the stated number of page views (b) credit the undelivered page views to a future advertising run, or (c) refund the amount paid on the invoice on a pro rated basis with respect to the undelivered page views. In no event will CPX be liable for any special, indirect, incidental or consequential damages whether such damages are alleged in tort, contract or indemnity or for loss of profits, interrupted communications, lost business or lost data arising out of or in connection with this Agreement, even if CPX has been advised of (or knows or should know of) the possibility of such damages.
Section 8. Indemnification.
A. CPX agrees to defend, indemnify and hold harmless Advertiser, its Affiliates (as defined below) and its respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred as a result of a Third Party (as defined below) claim, judgment or proceeding relating to or arising out of CPX’s breach of Section 10, CPX’s display or delivery of any Advertising Materials in breach of these Terms and Conditions or the terms of an Order, or that materials provided by CPX (and not by Advertiser) for an Advertising Materials violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action, except to the extent (1) that such claim, judgment or proceeding resulted from such materials fulfilling Advertiser's unique specifications provided that CPX did not know or should not have reasonably known that such specifications would give rise to the Loss or(2) that such materials are provided to Advertiser for review and the Advertiser knew or should have reasonably known from the visual or sonic expression of the Advertisement, while CPX did not know or should not have reasonably known, that such material violated any law, regulations or other judicial or administrative action, violate the right of a Third Party or are defamatory or obscene. An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A
"Third Party" means an entity other than the parties to this Agreement, their respective Affiliates, and each of their respective directors, officers, employees and agents.
B. Advertiser, agree to defend, indemnify and hold harmless CPX its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Advertiser’s breach of any provision of this Agreement, including, but not limited to Section 10, violation of CPX’s other policies and procedures (to the extent that they have been provided to Advertiser at least ten days prior to the violation giving rise to the claim), or the content or subject matter of any Advertising Materials to the extent used by CPX in accordance with these Terms and Conditions or an Order, including but not limited allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action.
C. Advertiser agrees to defend, indemnify and hold harmless CPX its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of Agency’s alleged breach of the foregoing sentence.
D. If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such claim;
and (ii) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party.
E. Notwithstanding the foregoing, in the event that any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a claim, judgment or proceeding of a Related Party (as defined below) of such Indemnified Party pursuant to this Section 8, Losses incurred in connection with such claim, judgment or proceeding will be limited to those that are reasonably foreseeable. A "Related Party" is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party.
Section 9. Third Party Advertising Servers (if applicable)
A. CPX will track delivery through its CPX Network and Advertiser will also track delivery through its proprietary or subcontracted Third Party Server whose identity is set forth in the Order. Advertiser may not substitute the Third Party Server specified in the Order without CPX's consent. Advertiser and CPX agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide weekly placement-level activity reports to each other. In the event that the CPX Network server measurements are higher than those produced by the Advertiser’s Third Party Server by more than 10% over the invoice period, Advertiser will facilitate a reconciliation effort between CPX and Third Party Server. If the discrepancy cannot be resolved and Advertiser has made a good faith effort to facilitate the reconciliation effort, the Advertiser reserves the right to either:
1. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b) whereupon the parties shall act in accordance with that Section, including the requirement that Advertiser and CPX make an effort to agree
upon the conditions of a makegood flight, except that for purposes of this Section 9.A.1, delivery of any makegood shall be measured by the Third Party Server, or
2. Pay CPX based on Advertiser Third Party Server reported data, plus a 10% upward adjustment to delivery.
B. CPX will make reasonable efforts to publish, and Advertiser shall make reasonable efforts to cause the Third Party Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regards to compliance with the IAB/AAAA Advertising Materials Measurement Guidelines.
C. Section 9.A shall be terminated upon the establishment of an IAB/AAAA certification process for compliance with the IAB/AAAA Advertising Materials Measurement Guidelines. Upon such termination the parties shall negotiate in good faith a replacement or successor language for that Section.
D. Where an Advertiser is utilizing a Third Party Server and that Third Party Server cannot serve the Advertising Materials, the Advertiser shall have a one-time right to temporarily suspend delivery under the Order for a period of up to 72- hours. Upon written notification by Advertiser of a non-functioning Third Party Server, the CPX has 24 hours to suspend delivery. Following that period, Advertiser will not be held liable for payment for any Advertising Materials that runs within the immediate 72-hour period thereafter until the CPX is notified that the Third Party Server is able to serve Advertising Materials. After the 72-hour period passes and Advertiser has not provided written notification that CPX can resume delivery under the Order, Advertiser will pay for the Advertising Materials that would have run or are run after the 72 hour period but for the suspension and can elect CPX to serve Advertising Materials until Third Party Server is able to serve Advertising Materials. If Advertiser does not so elect for CPX to serve the Advertising Materials until Third Party Server is able to serve Advertising Materials, CPX may utilize the inventory that would have been otherwise used for CPX's own advertisements or advertisements provided by a third party Upon notification that the Third Party Server is functioning, CPX will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in CPX owing a makegood to Advertiser.
Section 10. Non-Disclosure, Data Ownership, Privacy And Laws
A. Any marked confidential information and proprietary data provided by one party, including the Advertising Materials description, and the pricing of the Advertising Materials, set forth in the Order, shall be deemed “Confidential Information” of the disclosing party. Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary.
Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than those provided for under this Agreement.
B. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (i) was previously known to a party; (ii) was or becomes generally available to the public through no fault of the receiving party (“Recipient”); (iii) was rightfully in Recipient’s possession free of any obligation of confidence at, or subsequent to, the time it was communicated to Recipient by the disclosing party (“Discloser”); (iv) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. Notwithstanding the foregoing, either party may disclose Confidential Information 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 this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.
C. All personally identifiable information provided by individual web users who are informed that such information is being gathered solely on behalf of Advertiser pursuant to the Advertiser’s posted privacy policy is the property of Advertiser, is subject to the Advertiser's posted privacy policy, and is considered Confidential Information. Any other use of such information must be set forth in the Order signed by both parties.
D. CPX and Advertiser shall post on their respective Web sites their privacy policies and adhere to their privacy policies, which abide by the applicable laws. Failure by CPX, on one hand, Advertiser on the other, to continue to post a privacy policy or nonadherence to its own privacy policy is grounds for immediate cancellation of the Order by the other parties.
E. Advertiser and CPX will comply with at all times, all applicable federal, state and local law, ordinances, regulations and codes which are relevant to their performance of their respective obligations under this Agreement.
Section 11. Non-Circumvention. During the Term of this Agreement, and any renewal thereof, and for one (1) year after its termination for any reason, Advertiser agrees that it will not do business directly or indirectly with any publisher or other party with which CPX has placed the Advertising Materials through the CPX Network, or directly or indirectly solicit or induce such party to do business directly with the Advertiser. Advertiser understands and agrees that this prohibition is a key consideration and inducement for CPX to enter into this Agreement with Advertiser, and to provide the services hereunder.
Section 12. General.
12.1. Inconsistency with Order. In the event of any inconsistency between an Order and this Agreement, the terms of the Order shall prevail.
12.2. Governing Law, Jurisdiction and Venue. The laws of the State of New York shall govern this Agreement and all Orders, without regard for the conflict of law principles thereof. The Federal and State Courts located in Suffolk County, NY shall be the sole venue to hear controversies arising from or related to this Agreement, and each party consents to the personal jurisdiction of those courts.
12.3. Assignment. Advertiser may not resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without CPX’s prior written approval will be null and void. All terms and provisions of these Terms and Conditions and each Order will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.
12.4. No Prior Agreements. This Agreement, together with all fully executed Orders, contains every obligation and understanding between the parties regarding the subject matter hereof, and merges and supersedes all prior and contemporaneous agreements and understandings, if any, regarding the subject matter hereof.
12.5. Severability, Rights Cumulative. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.
12.6. Force Majeure. CPX shall not be held to be in breach of this Agreement by reason of any failure or delay in its performance hereunder if such failure is due to causes beyond its reasonable control, including but not limited to, acts of the other party, act of God, delays in transportation, inability beyond its reasonable control to obtain necessary labor or materials, or events such as fires, floods, earthquakes, storms, war, act of public enemy, civil commotion and the like or by any law, rule, regulation, order or other action by any public authority. In the event of interruption of display or distribution of the Advertisement, CPX’s sole obligation shall be to restore service as soon as reasonably possible.
12.7 Notices. Any notice required to be delivered hereunder shall be delivered three days after deposit 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 CPX and Advertiser shall be sent to the contact as noted in the Order with a copy to the Legal Department. All notices to Agency shall be sent to the address specified on the Order
The Parties represent that they fully acknowledge and agree to the terms of this Agreement, and that the following individuals are authorized to sign on their behalf.
