“MARKET SURF LLC” (“Market Surf”) shall perform services for Advertiser or, if applicable, Agency on behalf of Advertiser, (collectively “Customer”) pursuant to one or more Service Orders (in both the singular and plural “S/O”) incorporating these Standard Terms and Conditions (“T&C’s”). Capitalized terms not defined herein shall have the same meaning given to such terms in the S/O.
I. MARKET SURF SERVICES
This agreement, in conjunction with the corresponding Service Order, shall constitute Advertiser’s, its clients’ and agents’ (herein collectively referred to as “Advertiser”) understanding that Market Surf’s sole obligation is to promote the Advertiser’s product or services by showing banners (“Creative”) on site(s) across the Market Surf Network (the “Agreement”). The submission of a signed Service Order by Advertiser to Market Surf is construed as an acceptance of all the rates, terms and conditions under which advertising is sold at that time. Any and all modifications to this Service Order are invalid unless acknowledged and accepted in writing by both Market Surf and the Advertiser. Advertiser agrees that Market Surf may, but is not obligated to, display Creative across the entire Market Surf advertising network or on specific site(s) and that daily Campaign activity begins at 12:01 AM Eastern Standard Time. Market Surf may, at its option, modify the flight date of a Campaign(s) if the creative or linking URL’s: are not delivered on time, there are delays due to 3rd party ad-serving, inventory fluctuation or other issues. All rates quoted herein, orally, or through written communications are only valid fourteen (14) days from date of such statement. If no agreement is reached within this time frame Market Surf reserves the right to change rates.
II. DELIVERY MEASUREMENT STANDARDS
a. Market Surf will use commercially reasonable efforts to deliver the impressions stated in the Service Order in accordance with this Agreement and will use commercially reasonable efforts to deliver the impressions starting with the start date and ending with the end date set forth in this Service Order, and will make commercially reasonable efforts to spread such impressions evenly throughout the term of the Agreement unless otherwise instructed by Advertiser. b. Unless otherwise agreed upon in writing, all invoices created by Market Surf for work performed and delivered shall be in accordance with measurement and tracking performed by Market Surf. Market Surf has adopted the methodology for measuring impressions. Using methodology, impression delivery guarantees will be considered “met” when the impressions reported by Market Surf meet an Advertiser’s or representative agency’s Service order. c. In the event that Market Surf has agreed to use Advertiser’s third-party measurements for billing purposes, Advertiser expressly acknowledges that Market Surf may use and consider Advertiser’s third-party measurements via their online reporting systems, or email confirmations from Advertiser’s representatives as a valid, accurate, and a final measurement of their campaign. Advertiser agrees that it will not dispute their third-party login data or data transmitted via email to Market Surf.
III. PAYMENT, CREDIT, AND CANCELLATION TERMS
a. All invoices created by Market Surf for work performed and delivered to the Advertiser shall be based on Market Surf’s measurements and shall be in accordance with measurement and tracking described in the “Delivery Measurement Standards” section. In addition, all payments will be based upon Market Surf’s measurements and not based upon Advertiser, its clients, its agents measurements.
b. All payments will be made in advance unless agreed upon otherwise or credit is approved and Market Surf is under no obligation to perform agreed-upon services until payment is received. Upon approved credit, terms are Net 30 from the date of the invoice.
c. It is the Advertisers responsibility to validate all impressions, and/or clicks. The Advertiser must report any discrepancies related to their campaign to Market Surf within fifteen (15) days of the occurrence. Market Surf is not liable for any discrepancies not reported within this time frame and Advertiser waives all right, title, and intent to dispute payment to Market Surf based upon any discrepancy not reported within this time frame. All discrepancies must be reported to Market Surf at info@marketsurf.ge.
d. Either party may cancel this Agreement upon providing two (2) weeks written notice via email. If Advertiser terminates campaign early, payment in full for work performed and delivered up to the modified cancellation date will be owed and due and payable in full.
e. If Advertiser fails to pay overdue invoices for previous campaigns, Market Surf reserves the right to immediately terminate any active campaigns.
f. All payments must be made in EUR, unless otherwise agreed upfront. Advertiser understands and agrees that in no event, and under no circumstance will data provided by any Market Surf representative constitute final billing numbers. Only Invoices emailed directly to Advertisers and Agencies are to be construed as representative of billable amounts.
g. Advertiser agrees that all cancellation notices must be submitted via e-mail and must include a CC: to info@marketsurf.ge. All requests must be copied to this e-mail address to be considered valid. Furthermore, cancellation requests not copied to this address will not be considered valid and the Advertiser will be liable for all payments due.
h. In the event that Market Surf has agreed to use Advertiser’s third-party measurements for billing purposes, Advertiser expressly acknowledges that Market Surf may use and consider Advertiser’s third- party measurements via their online reporting systems, or email confirmations from Advertiser’s representatives as a valid, accurate, and a final measurement of their campaign. Advertiser agrees that it will not dispute their third-party login data or data transmitted via email to Market Surf.
i. Market Surf agrees to stop the Advertisers campaign temporarily (“Pause”) with a written request from the Advertiser. If Advertiser wishes to terminate the campaign early, Advertiser agrees to abide by the cancellation procedures set forth within these Terms and Conditions. Any cancellation notice will be based on the date the written notice was received by Market Surf. Market Surf will not accept the Pause period as a part of cancellation. If Advertiser cancels campaign during Pause period Advertiser agrees to pay for any leads, impressions, or clicks, delivered during the remaining cancellation notice period, based on daily averages prior to Pause.
IV. CREATIVE STANDARDS
a. All advertisements are subject to Market Surf’s approval. Market Surf reserves the right to reject, discontinue, or omit any Creative or any part thereof. This right shall not be deemed to have been waived by acceptance or actual use of any Creative. Market Surf may reject any Creative that Market Surf feels is not in keeping with reasonable standards outlined herein. Market Surf is not liable for errors in Creative position and/or placement, or typographic errors of any kind.
b. If Advertiser intends to provide Market Surf with Creative via 3rd party tags, Advertiser agrees to provide Market Surf with a sample of each and all advertisements contained within the 3rd party tags. Failure to do so will be deemed a breach of this Agreement. In the event Market Surf’s relationship with its publishers is damaged or lost as a result of a breach of this condition, Market Surf reserves the right to recover any and all monetary damages.
c. Advertiser agrees to pay for all campaigns delivered for and on behalf of Advertiser, as defined in the Service order, where Market Surf was requested to obtain creative from a location provided by the Advertiser.
d.Prohibited Use
The following are examples of materials that must not be included in Your Content. The following materials are either illegal or prohibited by the Company for purposes of posting on the Website. We reserve the right (but are not obligated) to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, by submitting or posting any of the following:
- material that is offensive and/or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- material that threatens, harasses or advocates harassment of another person;
- material that exploits people in a sexual or violent manner;
- material that contains nudity, violence, or offensive subject matter or contains a link to an adult Website;
- material that includes a photograph of another person that you have posted without that person's consent;
- material that solicits personal information from anyone under the age of 18;
- material that provides any telephone numbers, street addresses, personal or business email addresses, or last names;
- material that contains information that you know is false or misleading or material that promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
- material that promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated music, movies or computer programs or links to them, or providing information to circumvent manufacture-installed copy-protect devices;
- material that involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”;
- material that furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses.
V. LIMITATION OF LIABILITIES
Market Surf shall not have any liability to the advertiser for lost profits or other consequential, special, indirect or incidental damages, based upon a claim of any type or nature (including, but not limited to, contract, tort, including negligence, warranty or strict liability), even if advised of the possibility of such damages. In any event Market Surf shall not have any liability to the advertiser for lost profits or other consequential, special, indirect or incidental damages, based upon a claim of any type or nature (including, but not limited to, contract, tort, including negligence, warranty or strict liability), even if advised of the possibility of such damages. In any event Market Surf’s total obligations and/or liability can never exceed the charge for the advertisement in question. Except as expressly set forth herein, Market Surf makes no other warranties to advertiser and disclaims all warranties of merchantability or fitness for a particular purpose’s total obligations and/or liability can never exceed the charge for the advertisement in question except as expressly set forth herein, Market Surf makes no other warranties to advertiser and disclaims all warranties of merchantability or fitness for a particular purpose.
VI. INDEMNIFICATION
a. All Creative has been accepted and published upon the representation that the Advertiser is authorized to publish the entire contents and subject matter thereof. Advertiser agrees to indemnify and hold Market Surf, its Publishers or List Providers and their respective affiliates, employees, officers, agents, directors and representatives (“Market Surf Indemnified Parties” or “NIP”), harmless from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) indemnify, defend, and save Market Surf harmless from any and all liability for any claim or suits for libel, defamation, violation of rights of privacy, plagiarism, attorney’s fees, trademarks, copyright infringement, unauthorized content (including text, illustrations, representatives, sketches, maps, labels, or other copyrighted matter) contained in Creative or the unauthorized use of any person’s name or photograph, arising from Market Surf reproduction and publishing of such Creative pursuant to Advertiser’s submission.
b. Advertiser understands that Market Surf in due diligence cannot monitor all Market Surf Partner sites for appropriate content and Market Surf may not be held responsible for the content of any Partner site. If Advertiser reasonably determines that the placement of any advertisement by Market Surf hereunder harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, including, but not limited to association with websites that contain indecent, illegal, misleading, harmful, abusive, harassing, libelous, defamatory, or other offensive materials, then Market Surf shall use commercially reasonable efforts to remove such advertisement promptly following Advertiser’s notice thereof to Market Surf; provided, however, that if Market Surf reasonably believes that removal of an advertisement from a site will have a material impact on Market Surf’s ability to deliver advertisements in accordance with the Service Order, Market Surf may condition such compliance on Advertiser providing an extension of the flight dates.
c. Advertiser guarantees that data regarding consumers gained by this campaign will be only used for legal purposes and Advertiser will indemnify, defend and hold harmless the Market Surf Indemnified Parties from any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorney’s fees) Losses which result from any claim of damages brought or sought against Market Surf NIP that alleges consumer data gained by this campaign was used for any purpose in violation of any applicable laws. The indemnity obligations of this paragraph are contingent on NIP Market Surf giving prompt written notice of any such claim. NIP Market Surf will have sole control over the litigation or settlement of such claim. The provisions of this Paragraph shall survive the termination of this Agreement.
VII. FORCE MAJEURE
Market Surf 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 Market Surf’s control affecting production or delivery in any manner.
VIII. CONFIDENTIALITY
Parties have disclosed or may disclose to each other information relating to each party’s business (including, without limitation, data and other information pertaining to publisher sites, affiliates and vendors that are or have been part of the Market Surf Network), all of which to the extent previously, presently or subsequently disclosed to each other is “Proprietary Information.” Proprietary Information does not include information that each party can document (a) is or becomes (through no improper action or inaction of each party or its Representatives (as defined below)) generally known by the public, (b) was in its possession or known by it without restriction prior to receipt from the other party or (c) becomes available to a party from a source other than the other party or its Representatives having no obligation of confidentiality. (“Representatives,” when used with respect to either party, means that party’s affiliates, agents, officers, directors, consultants and employees). Parties agree (i) to hold Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions each party employs with respect to its most confidential materials), (ii) not to make any use whatsoever at any time of such Proprietary Information, except for the purpose of evaluating the results of Advertiser’s advertising campaign, (iii) not to copy any Proprietary Information for any purpose whatsoever without written permission from each party, and (iv) not to divulge any Proprietary Information or any information derived therefrom to any third party or employee, except those of each party’s employees who have a legitimate “need to know” and are bound in writing to the restrictions herein. Each party will be responsible for a breach of this Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Proprietary Information and will cooperate with the other party in every reasonable way to help regain possession of such Proprietary Information and prevent its future unauthorized use.
IX. PROPRIETARY RELATIONSHIPS
Market Surf has proprietary relationships with the publishers that make up the Network. With the exception of reasonably documented, pre-existing relationships with direct publishers or networks or relationships entered into in the ordinary course of Advertisers business, Advertiser agrees not to solicit, induce, recruit or encourage, directly or indirectly, any publisher that the Advertiser knows, or has reason to know, is a publisher on the Network for the purpose of offering to such publisher products or services that compete with those of Market Surf, including, without limitation, the placement or hosting of advertising in any form without the express, written consent of Market Surf. Advertiser understands that in the event of a breach of the forgoing representations by Advertiser, Market Surf shall be entitled to injunctive or other equitable relief as a remedy therefore, without the necessity of posting a bond with respect thereto. Any such relief awarded shall be in addition to any appropriate relief which may be awarded in the form of monetary damages, and Market Surf shall be entitled to monetary damages to the fullest permitted under applicable law. The foregoing remedy is a material, bargained for the basis of this agreement and has been taken into account in each party’s decision to enter into this Agreement.
X. CHOICE OF LAW AND VENUE
It is agreed that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be exclusively governed by Georgia law without respect to conflict of law provisions. The parties further agree to submit to personal jurisdiction in the courts of Georgia as such courts shall serve as the exclusive venue for all dispute resolution. The prevailing party of any litigated dispute arising out of or relating in any way to this Agreement shall receive its reasonable attorneys’ fees, together with its costs and expenses incurred resolving the dispute as part of the judgment.
XI. ENTIRE AGREEMENT
a. This Agreement, together with the Service Order(s) incorporated by reference, embodies our entire agreement, supersedes all prior oral and written agreements, and may not be amended or modified except by a writing acknowledged and accepted by both parties. This Agreement may be executed in any number of counterparts and facsimile copies, each of which shall be deemed an original, and all of which together shall be deemed one and the same instrument. In the event that any of the provisions included herein are held to be unenforceable, the remaining portions of the Agreement will remain in full force and effect. Any notice or report required or permitted by this Agreement shall be made by personal delivery or fax to then operating fax number or business address.
b. Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.
XII. SURVIVABILITY
Paragraphs 5, 6, 8 and 10 shall survive in perpetuity after the termination of this agreement by either party; Paragraph 9 shall survive for six (6) months from such termination.
XIII. AUTHORIZATION
Advertiser hereby authorizes Market Surf to promote and distribute Advertiser’s campaign via any electronic media (including website placement, search listing, etc.) as Market Surf in its discretion deems appropriate to meet Advertiser’s performance objectives. Advertiser agrees to allow and/or assist Market Surf to alter, resize, or otherwise modify creative only as necessary for distribution through the various channels listed above.