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TERMS AND CONDITIONS FOR INTERNET ADVERTISING AND MEDIA BUYS ONE YEAR OR LESS

These Terms and Conditions for Internet Advertising and Media Buys One Year or Less are intended to offer media companies and advertising agencies a standard for conducting business in a manner acceptable to both. This document, when incorporated into a quote or order, represents the parties’ common understanding for doing business. This document may not fully cover sponsorships and other arrangements involving content association or integration, and/or special production, but may be used as the basis for the media components of such contracts. This document is not meant to cover the relationship between a publisher and a network, or direct advertiser buys with publishers.

By accepting Order or Quote, whether manually or electronically, you agree to accept and pay for selected programs and services, pursuant to the terms and conditions published at: www.cmscritic.com/terms and as incorporated herein. You agree to be bound by these Terms and shall not be able to purchase our programs and services otherwise. This acceptance applies to you, your employees, agents, contractors, and your other users.

DEFINITIONS

  • “Ad” means any advertisement provided by Agency on behalf of an Advertiser.
  • “Advertiser” means the advertiser for which Agency is the agent under an applicable Order.
  • “Advertising Materials” means artwork, copy, or active URLs for Ads.
  • “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
  • “Agency” means the advertising agency listed on the applicable Order.
  • “Deliverable” or “Deliverables” means the inventory or Programs delivered by Media Company.
  • “Media Company” means CMS Critic and the cmscritic.com website.
  • “Network Properties” means any websites besides the Media Company, specified in Order that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads.
  • “Order” means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver programs and advertising for the benefit of Agency or Advertiser.
  • “Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies and deadlines.
  • “Program” means one-time or recurring advertising services as listed in the Order.
  • “Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
  • “Site” or “Sites” means Media Company Website and Network Properties.
  • “Terms” means these Terms and Conditions for Internet Advertising.
  • “Third Party Ad Server” means a Third Party that will serve and/or track Ads.
  • “Third Party” means an entity or person that is not a party to an Order; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.

Ⅰ.    ORDERS AND INVENTORY AVAILABILITY

  1. Order Details. From time to time, Media Company and Agency may execute Orders that will be accepted as set forth in Section I(b). As applicable, each Order will specify: (i) the type(s) and quantity of Deliverables, (ii) the price(s) for such Deliverables, (iv) the start and end dates of the Deliverables, and if applicable (v) the identity of and contact information for any Third Party Ad Server.
  2. Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an Order signed by Agency if the specified inventory is not available. Acceptance of the Order and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include electronic communication) approval of the Order by Media Company and Agency, or (ii) the display of the first Ad by Media Company, unless otherwise agreed on the Order. Notwithstanding the foregoing, modifications to the originally submitted Order will not be binding unless approved by both Media Company and Agency.
  3. Revisions. Revisions and modifications to accepted Orders will be made in writing and acknowledged by both Media Agency and Agency (the “Parties”).

Ⅱ.    AD PLACEMENT AND POSITIONING

  1. Compliance with Order. Media Company will comply with the Order, including all Ad placement restrictions, and, except as set forth in Section VI(c), will create a reasonably balanced delivery schedule. Media Company will provide, within the scope of the Order, an Ad to the Site specified on the Order when such Site is visited by an Internet user.
  2. Changes to Site. Media Company will use commercially reasonable efforts to provide Agency at least 10 calendar days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable Order. Should such a modification occur with or without notice, as Agency’s and Advertiser’s sole remedy for such change, Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Agency may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
  3. Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency technical specifications within two (2) business days of the acceptance of an Order. Changes by Media Company to the specifications of already-purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad; (iii) or accept a comparable replacement.
  4. Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the Order (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Media Company Properties, although Media Company will at all times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company and Agency agree that Media Company’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Agency with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Media Company remove the Ads and provide makegoods or, if no makegood can be agreed upon, or issue a credit to Advertiser equal to the value of such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Agency and Media Company will negotiate an alternate solution. After Agency notifies Media Company that specific Ads are in violation of the Editorial Adjacency Guidelines,  Media Company will make commercially reasonable efforts to correct such violation within 48 hours. If such correction materially and adversely impacts such Order, Agency and Media Company will negotiate in good faith mutually agreed changes to such Order to address such impacts. Notwithstanding the foregoing, Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Advertiser’s and Agency’s sole remedy for Media Company’s breach of such obligation will be to submit written complaints to Media Company, which will review such complaints and remove user-generated content that Media Company, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.

PAYMENT, TERM AND PAYMENT LIABILITY

  1. Invoices.Invoices are sent upon Order Acceptance and due on receipt. Quarterly or recurring orders are billed or automatically charged on the first day upon expiration of the initial term and each subsequent term.
  2. Payment Date. Agency will make payment within ten (10) calendar days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the Order. Media Company may notify Agency that it has not received payment in such 10-day period and charge 0.2% interest fee for each day of delinquency (6% per month).
  3. Term.From Effective Date for a term specified within the order. If no term is listed, a standard term of three (3) months shall apply. Recurring programs shall auto-renew in subsequent terms equal in length to the initial term.
  4. Rates.Media Company reserves the right to adjust its rates at its own discretion. Rate increase shall no impact existing, one-time Orders. For recurring Orders, Client shall receive a 15-day notice of rate increases higher than 5%.
  5. Discounts.Discounts and Special Promotions shall not auto-renew and are only applicable for the Initial Contract Term. Reduction in any quantity presented shall void all discounts. Applicable discounts shall be only valid for 10 days from the Order date.
  6. Agency and Advertiser Relationship. Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the Order and these Terms.

CANCELLATION AND TERMINATION

  1. Without Cause. One-time flat feebased or fixed-placement Programs can be cancelled with 14 days prior written notice; however, no credit nor refund shall apply. For recurring, subscription based programs (i.e. quarterly), written cancellation notice shall be provided at least 30 calendar prior to the renewal date to stop recurring subscriptions. Advertiser will remain liable to Media Company for amounts due for the remainder of each, then-current subscription and any custom content or development (“Custom Material”) provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. Advertiser will pay for such Custom Material within 7 days from receiving an invoice therefore.
  2. For Cause. Either Media Company or Agency may terminate an Order at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the Order or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the Order and/or placements associated with such breach upon written notice and Advertiser shall be responsible for the full payment of the Order.

V. FORCE MAJEURE

  1. Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission.
  2. Cancellation. If a Force Majeure event has continued for severn (7) business days, Media Company and/or Agency has the right to cancel the remainder of the Order without penalty.

VI. AD MATERIALS

  1. Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies.
  2. Late Creative. If Advertising Materials are not received within three (3) days of the Order start date, Media Company will begin to charge the Advertiser on the Order start date. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the Order. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials but fails to commence a campaign on the Order start date.
  3. Compliance. Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Media Company or any of its Affiliates (as defined below), provided that if Media Company has reviewed and approved such Ads prior to their use on the Site, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.
  4. Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials.
  5. No Modification. Media Company will not edit or modify the submitted Ads without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the Order.
  6. Ad Tags. When applicable, Third Party Ad Server tags may be implemented so that they are functional in all aspects.
  7. Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an Order without the other’s prior written approval.

VII. INDEMNIFICATION

  1. By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from Media Company’s breach of these Terms or of Media Company’s representations and warranties. Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives.
  2. By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of these Terms or of Advertiser’s representations and warranties as set herein, (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 7 days prior to the violation giving rise to the Claim), or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Media Company in accordance with these Terms or an Order.
  3. By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each Order, and that all of Agency’s actions related to these Terms and each Order will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency-specific obligations under these Terms.
  4. Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not agree to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.

VIII. LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, AND CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATED TO ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES, INCLUDING, WITHOUT LIMITATION, ALL INFORMATION, CONTENT, AND OTHER SERVICES MADE AVAILABLE BY CMS CRITIC OR ANY THIRD-PARTY VENDORS ARE PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS AND NEITHER CMS CRITIC, ITS PARENT COMPANY, NOR THEIR AFFILIATES AND SUBSIDIARIES MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES. FREE SERVICES AND BETA SERVICES ARE PROVIDED "AS IS," EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY PROVIDERS.

Defects should be promptly reported via submitting electronic tickets to info@cmscritic.com.

EXCEPT FOR A PARTY’S INDEMNIFICATION, CONFIDENTIALITY, DATA PRIVACY OBLIGATIONS UNDER THIS AGREEMENT, OR ANY CLAIMS INVOLVING GROSS NEGLIGENCE, RECKLESSNESS, WILLFUL MISCONDUCT, OR INTENTIONAL MATERIAL BREACH OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY USER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS OR REVENUES OR COST OF REPLACEMENT SERVICES (WHETHER DIRECT OR INDIRECT) NOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CMS CRITIC’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, CMS CRITIC’S AGGREGATE LIABILITY TO THE CUSTOMER TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION IS LIMITED TO THE CONTRACT PRICE DURING THE INITIAL CONTRACT PERIOD AND THEREAFTER LIMITED TO NO MORE THAN THE AMOUNT THE CUSTOMER ACTUALLY PAID TO CMS CRITIC UNDER THIS AGREEMENT DURING THE TWO (2) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, OR OTHER TORTS BUT WILL NOT LIMIT THE CUSTOMER’S AND HIS/HER AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE "FEES & PAYMENTS" SECTION ABOVE.

THE FEES FOR THE SERVICES SET BY CMS CRITIC UNDER THIS AGREEMENT OR IN THE ORDER HAVE BEEN AND WILL CONTINUE TO BE BASED UPON THIS ALLOCATION OF RISK. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT EITHER PARTY’S LIABILITY WITH RESPECT TO THOSE LIABILITIES THAT CANNOT BE LEGALLY EXCLUDED OR LIMITED EVEN IF ANY OTHER PROVISION MAY SUGGEST OTHERWISE.

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

IX. NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS

  1. Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to Order Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the Order.
  2. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser 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 these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
  3. Additional Definitions. As used herein the following terms shall have the following definitions:
    1. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the Order, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
    2. “Order Details” are details set forth on the Order but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
    3. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the Order (e.g., number of impressions, interactions, and header information), but excluding Site Data or Order Details.
    4. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the Order; (B) gathered pursuant to the Order during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
    5. “Collected Data” consists of Order Details, Performance Data, and Site Data.
    6. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the Order.
    7. “Aggregated” means a form in which data gathered under an Order is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
  4. Use of Collected Data.
    1. Unless otherwise authorized by Media Company, Advertiser will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any Order Details or Site Data; (B) disclose Order Details of Media Company or Site Data to any Affiliate or Third Party.
    2. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose Order Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the Order, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the Order.
    3. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the Order on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the Order.
  5. Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the Order by the other party. Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the Order.
  6. Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.

X. MISCELLANEOUS

  1. Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the Order subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the Order and subject to these Terms, including any applicable Policies.
  2. Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each Order will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
  3. Entire Agreement. Each Order (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Order. The Order may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
  4. Conflicts; Governing Law; Amendment.In the event of any inconsistency between the terms of an Order and these Terms, the terms of the Order will prevail. All Orders will be governed by the laws of the State of Florida. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the Order (including these Terms) will be brought solely in the State of Florida (USA), and the parties consent to the jurisdiction of such courts. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
  5. Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically with the Delivery Receipt and Read Receipt options selected. All notices to Media Company and Agency will be sent to the contact as noted on the Order with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the Order.
  6. Survival. Sections III (Payment and Payment Liability), XII (Indemnification), XIII (Limitation of Liability), IX (Non-Disclosure, Data Usage And Ownership, Privacy And Laws), and X (Miscelanous) will survive termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
  7. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.