General Terms and Conditions
These General Terms and Conditions (“General Terms”) govern your access and use of TADVANA marketing services, as such term is defined below. “We”, “us”, “our” and “TADVANA” means the TADVANA entity or entities providing Services (and thus the entity or entities with all rights and obligations with respect to those Services) under the applicable Ordering Document. “You”, “your”, and “Advertiser” means the client, customer or subscriber agreeing to or accepting these terms.
1. Definitions.
(a) “Agreement” means this Marketing Service Agreement, each Ordering Document, and any applicable incorporated documents.
(b) “Services” means one or more of the following: Online Marketing and Advertising Services, Media Buying/Placements, Analytics and Reporting, Website Search Engine Optimization, and Third-Party Automation Support. The services are detailed in the List of Services attached hereto and incorporated herein by this reference as Exhibit “A”. To the extent that the parties later mutually agree to add additional services to this Agreement, additional services may be entered into and incorporated herein as Exhibit “B,” “C,” and so forth.
(c) “Ordering Document” means an order form, order confirmation, statement of work, invoice, e-commerce confirmation or similar agreement issued by Agency or entities that lists or describes the Services to be supplied by Agency.
(d) “Term” means the duration in which this Agreement shall commence, the Effective Date, and continue until sooner terminated as provided in the Agreement.
(e) “Deliverables” means information and materials created by or on behalf of Agency for Advertiser in connection with its rendition of Services hereunder.
2. Services Provided. Agency shall provide Advertiser with the Services set forth in the applicable Ordering Document.
3. Applicable Ordering Document. The applicable Ordering Document identifies which Services, quantities, Compensation, and other details of Advertiser’s order. The applicable Ordering Document may also refer to and incorporate documents which may apply to the Services that Advertiser selected. Each Ordering Document, any applicable incorporated documents, and this Agreement constitute the complete terms and supersede any prior or contemporaneous discussions, agreements, representations or warranties regarding your order.
4. Limited License to Your Data. Advertiser hereby grants Agency a nonexclusive license and right to use, copy, store, host, display, transmit and process Advertiser’s data solely as necessary for Agency, Agency’s employees and contractors to provide its Services under the Agreement and in accordance with applicable law. Agency may delete or disable Advertiser’s data if required under applicable law, in which case Agency will use its reasonable efforts to provide notice to Advertiser.
5. Third Party Providers. Agency’s Services may include data and software from third parties. Some third-party providers require Agency to pass additional terms through to Advertiser. The third-party providers change their terms occasionally and new third-party providers are added from time to time. Advertiser agrees to comply with all applicable third-party terms therein.
6. Unauthorized Technology. Unless prior written authorization is given by Agency, Advertiser must not (i) run or install any computer software or hardware on Agency’s Services or network; (ii) mine, scrape, reverse engineer, index, or automatically download Agency data; or (iii) automatically connect (whether through APIs or otherwise) Agency data to other data, software, services or networks. Neither party will knowingly introduce any malicious software or technologies into any products, services or networks.
7. Delivery. Agency will deliver its Services and any Deliverables electronically, on tangible media, or by other means, in Agency’s sole discretion. When Advertiser downloads, views, or accesses Agency Services or Deliverables, Advertiser is accepting it for use in accordance with the Agreement.
8. Consent to Electronic Communications. Advertiser hereby consents to receiving electronic communications from Agency. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services.
9. Customer Assistance. Agency will not be responsible if the Service fails to perform because of Advertiser’s third-party software, Advertiser’s hardware malfunctions, or Advertiser’s actions or inaction. If Agency learns that the Service failed because of one of these, Agency will also reserve the right to charge Advertiser for its work in investigating the failure. At Advertiser’s request, Agency will assist them in resolving the failure at a fee to be agreed upon by Agency.
10. Intellectual Property Ownership and Compliance
(a) Definition of Intellectual Property. For the purposes of this Agreement, “Intellectual Property” shall include but not be limited to all copyrights, trademarks, service marks, trade secrets, inventions, discoveries, designs, and any other proprietary rights related to the creative works produced by the Agency in connection with the Services (collectively referred to as “Creative Works”).
(b) Ads/Artwork Requirements. Advertiser agrees to work with Agency, its officers, directors, employees, agents, and affiliates (handling advertising artwork) in order to submit ad copy in compliance with Agency’s reasonable specifications as communicated to Advertiser by such representative from time to time. Advertiser shall also provide all necessary information, materials, and approvals promptly as needed by Agency to facilitate the timely delivery of Services. Advertiser acknowledges that any delays in providing such information or materials may adversely impact Agency’s ability to deliver Services as agreed, and shall not hold Agency liable for any resulting delays in the performance of its obligations under this Agreement.
(c) Ownership of Creative Works. Subject to Agency’s rights in and to the Agency Property (as defined below), Advertiser shall own all right, title, and interest in and to all Deliverables on a “work for hire” basis (as such term is commonly understood in U.S. copyright law). Agency agrees to execute any and all documents reasonably necessary to effectuate this arrangement. Notwithstanding the foregoing, all creative content, computer code, methodologies, and other information and/or materials created by Agency prior to or outside the scope of this Agreement (the “Agency Property”) shall remain the sole and exclusive property of Agency, despite its incorporation in the Deliverables. Agency hereby grants a fully paid-up, perpetual, worldwide, non-exclusive, non-transferable license to Advertiser to use the Agency Property, but only to the extent incorporated into the Deliverables and without any modification thereto. In no event shall Advertiser be entitled to use any of the Agency Property separately and apart from its incorporation in the Deliverables hereunder.
(d) Agency Property. Notwithstanding the preceding sentence, any pre-existing materials, templates, or proprietary tools developed by Agency prior to or outside the scope of this Agreement (the “Agency Property”) shall remain the sole and exclusive property of Agency. Agency shall grant Advertiser a fully paid-up, perpetual, worldwide, non-exclusive, non-transferable license to use the Agency Property solely as incorporated into the Creative Works, provided such use does not modify the Agency Property in any way.
(d) Approval for Third-Party Materials. If any Creative Works incorporate third-party materials, Agency agrees to obtain all necessary licenses, permissions, and clearances for the use of such materials, and shall provide evidence of such rights to Advertiser prior to the final delivery of the Creative Works.
(e) Protection of Rights. Both parties agree to cooperate in good faith to protect the Intellectual Property rights associated with the Creative Works. Agency shall execute any necessary documentation and take all reasonable actions as requested by Advertiser to perfect and protect Advertiser’s ownership rights in the Creative Works.
(f) Legal Compliance with Advertising Laws, Rules, and Regulations. Advertiser acknowledges that it is Agency’s business policy to conduct the Services in the applicable Ordering Document in a manner so as not to: send unsolicited (i.e., spam) email to recipients (unless authorized by Federal law), promulgate advertising that is, in any way, false or misleading, misuse or misappropriate another party’s intellectual property and/or other third party rights of any kind, send obscene messages to any recipients, and/or use email or other forms of messaging to conduct illegal or immoral activities of any kind as per current, applicable law. Advertiser and Agency both agree not to take any actions inconsistent with this policy, and to make all of its employees and agents aware of such policy in order to ensure compliance herewith. Advertiser further agrees that it will cooperate with Agency in all reasonable respects in its efforts to respect any recipient’s privacy wishes and requests to be unsubscribed from receiving email.
11. Confidentiality and Publicity Rights.
(a) Definition of Confidential Information. Neither party (each, a “receiving party”), along with its directors, officers, employees, agents, advisors, subcontractors, independent contractors, subsidiaries, and affiliates (collectively its “Representatives”) shall, during the Term and for a period of five (5) years thereafter, without the other party’s (each, a “disclosing party”) prior written approval in each instance, disclose or otherwise make available to any other person or entity (whether acquired on the Effective Date or during the continuance of this Agreement) any information relating to the disclosing party’s business plans, products, advertising, Deliverables, terms of this Agreement, innovations, fees, advertising or product concepts, customers, technology, computer software, computer systems, marketing methods, sales margins, cost of goods, cost of materials, capital structure, operating results, or other business affairs (including without limitation, Agency’s rates), or any other proprietary or confidential information of the disclosing party (the “Confidential Information”). The foregoing shall not apply to Confidential Information which (i) is or becomes known to the general public (other than as a result of the disclosure, directly or indirectly, by the receiving party or its Representative); (ii) was or is made available to the receiving party on a non-confidential basis from a source other than the disclosing party or any affiliate, provided that such source is not, and was not, to the receiving party’s knowledge, bound by a confidentiality agreement with the disclosing party or any affiliate or otherwise prohibited from transmitting such information by contract, legal or fiduciary obligation to the disclosing party, any affiliate, or any third party; or (iii) is required to be disclosed by law, provided the receiving party gives disclosing party notice and an opportunity to seek an appropriate protective order at its own expense. It is understood that the information required to be held in confidence as herein provided may be disclosed by the receiving party only to Representatives who need to know such Confidential Information for the purposes of fulfilling its obligations hereunder. Such Representatives, prior to any such disclosure, shall be informed of the confidential nature of such Confidential Information, and shall agree in writing to be bound by the terms hereof.
(b) Property and Duration. All Confidential Information furnished to the receiving party by the disclosing party or any third party at the request of the disclosing party shall be and remain the property of the disclosing party. All copies of such Confidential Information in written, electronic, graphic, or other tangible form shall be returned to the disclosing party at any time upon the advance written request of the disclosing party or upon the termination of this Agreement for any reason whatsoever, subject to the terms hereof. Confidentiality obligations survive termination of this Agreement for three (3) years, except for trade secrets, which remain protected indefinitely while they retain trade secret status under applicable law.
(c) Return and Remedies. Upon termination or at disclosing party’s request, the receiving party shall promptly return or destroy all Confidential Information (including copies), except for: one archival copy retained solely for compliance purposes; electronic backups deleted in the ordinary course of business. Breach of this Section may cause irreparable harm. The disclosing party is entitled to injunctive relief without posting bond, in addition to monetary damages.
12. Non-Solicitation. Neither party shall solicit the services (either on a part-time or full-time basis) of the other party’s employees, independent contractors, affiliates, and/or consultants during the Term and for three (3) years thereafter. This restriction applies to the engagement of those employees, independent contractors, affiliates, and/or consultants who have ceased to provide services (either on a full or part time basis) to such other parties for at least two consecutive (2) years prior to any such solicitation.
13. Indemnification. Advertiser shall indemnify and hold Agency, its officers, directors, employees, agents, and affiliates (collectively, the “Indemnified Parties”) harmless from and against any and all costs, damages, liabilities, losses, claims, demands, or expenses, including without limitation reasonable attorney’s fees and expenses, arising out of or in connection with this Agreement. The Indemnified Parties shall provide Advertiser with written notice of any claim for which indemnification is sought, and Advertiser shall have the right to control the defense and settlement of such claim, provided that it cannot settle any claim without the prior written consent of the Agency, which shall not be unreasonably withheld. The Agency shall cooperate in all reasonable respects with Advertiser in the defense of such claim at Advertiser’s expense.
14. Warranties and Disclaimers
(a) Mutual Representations and Warranties. Each party represents and warrants that it is duly organized, validly existing and in good standing in its state of incorporation, and has full power and authority to enter into this Agreement. Each party further represents and warrants to the other party that the contents and exploitation of any and all information and/or materials created, provided, and/or disseminated by such party hereunder, including without limitation the Deliverables when used specifically as authorized by such party without modification: (i) are true and accurate in every respect; (ii) do not violate any applicable law, rule, or regulation (including any and all applicable advertising regulations); and (iii) do not violate any third party rights of any person or entity in any way including without limitation any intellectual property, privacy, defamation, or publicity rights.
(b) LIMITED WARRANTY. EXCEPT WITH RESPECT TO SERVICES AND DELIVERABLES, AGENCY WARRANTS THAT PROPERLY LICENSED SERVICES WILL MATERIALLY CONFORM TO ANY DOCUMENTATION THAT ACCOMPANIES THE SERVICES. THIS LIMITED WARRANTY APPLIES FOR THE DURATION OF THE TERM. YOUR ONLY REMEDY IN THE EVENT WE BREACH THIS LIMITED WARRANTY SHALL BE THE REPAIR OR REPLACEMENT OF THE SERVICES AT NO CHARGE. THIS LIMITED WARRANTY DOES NOT COVER PROBLEMS CAUSED BY YOUR FAILURE TO ADHERE TO INSTRUCTIONS OR CAUSED BY EVENTS BEYOND OUR REASONABLE CONTROL.
(c) DISCLAIMER OF WARRANTIES. THE FOREGOING WARRANTIES DO NOT APPLY, AND AGENCY STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY DATA OR THIRD-PARTY SOFTWARE. EXCEPT FOR THE LIMITED WARRANTIES PROVIDED IN SECTIONS 17 HEREIN, AGENCY’S SERVICES ARE PROVIDED “AS IS”, AND ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW INCLUDING, WITHOUT LIMITATION, WARRANTIES OR OTHER TERMS AS TO SUITABILITY, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN ENTERING THE AGREEMENT, NEITHER PARTY HAS RELIED UPON ANY STATEMENT, REPRESENTATION, WARRANTY OR AGREEMENT OF THE OTHER PARTY EXCEPT FOR THOSE EXPRESSLY CONTAINED IN THE AGREEMENT. UNLESS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT, AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AGENCY DOES NOT WARRANT OR REPRESENT OR INCLUDE ANY OTHER TERM THAT THE SERVICES WILL BE DELIVERED FREE OF ANY INACCURACIES, INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS, OR THAT ANY OF THESE WILL BE CORRECTED, AND AGENCY WILL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM SUCH FAULTS. AGENCY DOES NOT WARRANT THE LIFE OF ANY URL OR THIRD-PARTY WEB SERVICE.
15. Liabilities. The Agency shall exercise commercially reasonable care to safeguard any materials supplied by Advertiser under this Agreement.
(a) Limitation of Liability. Except as expressly provided in subsection (c), Agency shall not be liable to Advertiser for any loss, damage, cost, or expense arising out of or related to this Agreement, including but not limited to: loss or corruption of Advertiser materials; service interruptions or delays; third-party claims related to advertising content; indirect, incidental, consequential, punitive, or special damages. Nothing in the Agreement limits liability that cannot be limited under law.
(b) Exceptions. The limitation in subsection (b) shall not apply to: (i) Damages directly caused by Agency’s gross negligence or willful misconduct; (ii) Breaches of confidentiality obligations under Section 9; (iii) Unauthorized use of Advertiser’s intellectual property; (iv) Fraud or breach of this Agreement.
(c) Caps. For claims not excluded under subsection (c)(i), Agency’s total liability under this Agreement shall not exceed the total Fees paid by Advertiser during the six (6) months preceding the claim. For claims arising from gross negligence or willful misconduct under subsection (c)(i), liability shall be limited to direct, documented damages.
(d) Reimbursement. If Agency or its personnel cause damage to Advertiser materials through negligence or willful misconduct, Agency shall promptly reimburse Advertiser for reasonable replacement costs or repairs, subject to the caps in subsection (c).
16. Term Renewal. The Term and any renewal terms for the Services are described in the applicable Ordering Document. If not otherwise stated in the applicable Ordering Document, the Agreement will automatically renew in equal three (3) months or annually unless either party gives the other at least fourteen (14) days written notice before the end of the then current Term.
17. Termination and Refunds.
(a) Without Cause. This Agreement may be terminated by either party, for any reason, upon written notice to the other party.
(b) For Cause. This Agreement may be immediately terminated by either party without further liability or obligation to the other party if: (i) the other party violates any applicable U.S. state or local laws, rules, regulations, or ordinances (including without limitation, any applicable advertising regulations); (ii) the other party otherwise materially breaches any provision, warranty, or representation of this Agreement and, if such breach or violation is curable, it remains un-remedied for a period of fourteen (14) days following receipt of written notice thereof detailing such breach or violation; or (iii) the other party becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors.
(c) Termination for Convenience by Advertiser. To receive any refunds, Advertiser may terminate this Agreement without cause by providing Agency with a minimum of three (3) days prior written notice. Upon such termination:
(i) Advertiser shall pay:
- All Fees for Services rendered through the termination date;
- 100% of Fees for work-in-progress Deliverables;
- Any third-party costs or penalties incurred by Agency (e.g., non-cancellable media buys or software service early termination fees).
(ii) No refunds shall be issued for Fees or Expenses paid prior to termination.
(d) Effects of Termination.
(i) Agency shall retain all Fees and Expenses paid prior to termination.
(ii) Advertiser shall immediately pay all outstanding amounts due under the Term.
(iii) Agency has no obligation to refund deposits, retainers, or prepaid amounts.
(e) Following Termination. In the event of any termination, Advertiser shall pay Agency all amounts due to Agency up through the effective date of termination, including without limitation the actual approved costs, expenses, and fees properly incurred by Agency on behalf of Advertiser prior to the effective date of termination which cannot, through Agency’s commercially reasonable efforts at no expense to Agency, be reduced or cancelled, but not exceeding amounts approved in advance in writing by Advertiser prior to the effective date of termination. Additionally, upon termination of this Agreement, the Agency shall transfer to Advertiser all materials in Agency’s possession or control paid for by Advertiser, and all contracts and reservations for time, space, talent and other resources entered into by Agency for Advertiser hereunder.
18. Dispute Resolution Process. In the event of any dispute arising out of or relating to this Agreement, the parties agree to the following dispute resolution terms:
(a) Initial Discussions: The parties shall first attempt to resolve the dispute informally through good faith discussions. Either party may initiate this process by providing written notice to the other party detailing the nature of the dispute. The parties shall engage in discussions for a period of forty-five (45) days from the date of such notice.
(b) Mediation: If the dispute cannot be resolved through informal discussions within the forty-five (45) day period, the parties agree to submit the dispute to mediation before a mutually agreed-upon mediator in Clark County, Nevada. The mediation shall take place within ninety (90) days after the conclusion of the initial discussions. Each party shall bear its own costs and expenses related to the mediation, and the parties shall share equally the costs of the mediator.
(c) Agreement to Arbitrate: If the dispute remains unresolved after mediation, the parties agree to submit the dispute to binding arbitration in Clark County, Nevada, in accordance with the rules of the American Arbitration Association (AAA). The arbitration shall be conducted before a single arbitrator, and the decision of the arbitrator shall be final and binding on both parties. Each party shall bear its own costs and expenses related to the arbitration, but the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs from the other party in accordance with the arbitrator’s decision.
(e) Waiver of Right to Sue. The parties agree that any such disputes shall be resolved exclusively through the mediation and arbitration process in this section. The parties hereby waive any right to sue the other party in a court of law for any disputes arising out of or relating to this Agreement, including any claims related to the Services provided, compensation, or any other matters. This waiver of the right to sue is intended to encompass all claims and disputes that could otherwise be brought in a court of law, whether based on contract, tort, or any other legal theory.
(f) Jurisdiction: The parties agree that any legal action or proceeding arising out of or relating to this Agreement shall be brought exclusively in Clark County, Nevada. Each party hereby consents to the jurisdiction and waives any objection to the venue.
19. Force Majeure. Other than with respect to Advertiser’s payment obligations hereunder, neither party shall be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including without limitation, war, weather, strikes, lockouts, fires, acts of God, or terrorism. Notwithstanding the foregoing, the affected party shall promptly provide written notice thereof to the other party, which notice shall include a detailed description of the event of force majeure along with the affected party’s best estimate of the length of time such event will delay or prevent performance. Additionally, the affected party shall use all reasonable efforts to limit the impact of the event of force majeure on its performance. If an Event of Force Majeure continues for at least six (6) consecutive weeks, Advertiser shall have the right to immediately terminate this Agreement pursuant to the terms hereof.
20. Changes to Service. The Services may change from time to time, but Agency will not change their fundamental nature unless otherwise expressly permitted herein. Certain Services include updates (bug fixes, patches, maintenance releases). Agency reserves the right to charge for upgrades (releases or versions that include new features or additional functionality) or any application programming interfaces (“APIs”) for applicable Services. Any additional charges for selected upgrades or APIs will be set forth in a separate Ordering Document. Agency may subject certain features or functionality to metering or other usage restrictions to maintain responsive performance.
21. Partial Invalidity. In the event that any part or portion of this Agreement is deemed to be invalid and therefore unenforceable, the remaining provisions shall continue in full force and effect.
22. Assignment. Neither party shall assign or otherwise transfer this Agreement, in whole or in part, without the prior written consent of the other party.
23. Relationship of the Parties. The parties hereto enter an agency relationship. The Agency shall be considered the agent and the Advertiser shall be considered the principal. Without limitation on the generality of the foregoing, neither party may bind the other party to any agreement, obligation or covenant of any kind (expressed or implied) without the bound party’s prior written consent in each instance.
24. Survival. Following the Term or Termination, any and all provisions set forth herein which, by their very nature, are intended to survive any expiration or termination hereof, shall so survive, including without limitation, the provisions respecting confidentiality, representations & warranties, non-compete, non-solicitation, liability, indemnifications, dispute resolution process, limitations on liability, insurance, ownership, and accrued payment obligations.
25. Waiver. The failure of any party to require performance by any other party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by any party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
26. Governing Law. The Agreement shall be governed by and construed with the laws of the State of Nevada without regard to its conflict of laws principles.
27. Counterparts. This Agreement may be executed in counterparts and delivered by facsimile or electronic transmission, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument.
28. Entire Agreement; Modification. This Agreement (along with any attachments incorporated herein) sets forth the entire agreement between the parties with respect to its subject matter and supersedes any prior agreement or communications between the parties, whether written or oral relating hereto. No representation, inducement, or promise has been made or relied upon by either party, unless expressly set forth in this Agreement. This Agreement may be modified only by a written amendment signed by authorized representatives of both parties. To the extent that the terms hereof contradict any terms of any attachment hereto, the terms hereof shall govern, unless specifically set forth to the contrary therein.