TRAFFIQ Advertiser Agreement
This TRAFFIQ Advertiser Agreement (this “Agreement”) is entered into by and between you, including without limitation, the entity you represent (if any) as set forth in your Registered Account (hereinafter “Advertiser”) and TRAFFIQ, Inc., a Delaware corporation with a principal address of 462 Seventh Avenue, 21st Floor, New York, NY 10018 (“TRAFFIQ”). Advertiser and TRAFFIQ together may collectively be referred to herein as the “Parties” and each individually as a “Party”. For purposes of clarity, if you are an agency representing a client, the term “Advertiser” shall refer to you and your client, unless otherwise provided for herein. This Agreement sets forth the terms and conditions pursuant to which the Parties will conduct business through the TRAFFIQ Marketplace (as defined herein).
1. Definitions
Capitalized terms used throughout this Agreement that
are not otherwise defined herein shall have the meanings
set forth in Appendix A
attached hereto.
2. RFP Submission; Offer Acceptance
From time to time, Advertiser may submit a RFP to
certain Participating Publishers through the TRAFFIQ
Marketplace. Advertiser may then Accept an Offer
submitted by a Participating Publisher in response to
such RFP. By Accepting such Offer, Advertiser is
agreeing (i) to pay the Sale Price set forth in such
Offer to TRAFFIQ in consideration for receiving the
Inventory set forth in the Offer and (ii) to otherwise
be bound by the terms of this Agreement.
3. Account Funding and Debiting
- In order for Advertiser to Accept an Offer pursuant
to Section 2, Advertiser must have Available TRAFFIQ
Funds in its TRAFFIQ Advertiser Account sufficient to
cover the Sale Price set forth in the Offer. Upon
Accepting an Offer, the total Sales Price set forth in
the Offer will be reserved in the TRAFFIQ Advertiser
Account and will not be accessible to Advertiser to
Accept other Offers or to be remitted to Advertiser (in
the case of Cash Funds) subject to fulfillment of the
terms of the Order and this Agreement.
- If an Order is cancelled in accordance with Section
8 hereof, the difference between the Sale Price and the
Final Sale Price (if any) will again become available to
Advertiser as Available TRAFFIQ Funds, after
reconciliation of the Order pursuant to Section 9
hereof. For purposes of clarity, TRAFFIQ first reserves
payment on Accepted Offers against Promotional Funds,
then second, against Cash Funds, and then third, against
Trade Credit.
4. Inventory Availability; Material Changes; Technical Specifications
- Where Advertiser has Accepted an Offer, TRAFFIQ
agrees to cause the Participating Publisher to provide
the Inventory specified in the Offer, subject to (i) the
review rights with respect to the Ad Materials set forth
in Section 5 hereof, (ii) the suspension rights set
forth in Section 7 hereof, and (iii) the cancellation
rights set forth in Section 8 hereof.
- Delivery of the Inventory will comply with the
specifications set forth in the Offer. TRAFFIQ will use
commercially reasonable efforts to cause the
Participating Publisher for an Order to provide
Advertiser notice as soon as possible and in no case
less than two (2) business days prior to the
commencement of delivery of the Inventory of any
material changes to the Site upon which any part of the
Ad Materials are to appear that would change the target
audience or significantly affect the size or placement
of any part of the Ad Materials compared to that which
was set forth in the Offer. Unless otherwise stated in
the Offer, the Inventory will be delivered to Advertiser
on a reasonably balanced delivery schedule.
- Each Offer delivered through the TRAFFIQ
Marketplace will either have or provide reference to the
applicable technical specifications in order to commence
delivery of the Inventory. Notwithstanding the
foregoing, to the extent there are additional technical
specifications required, TRAFFIQ will use reasonable
efforts to submit or otherwise make such additional
technical specifications electronically accessible to
Advertiser within two (2) business days after the
Acceptance by Advertiser of the Offer and in no instance
less than two (2) business days prior to the Order
Commencement Date.
5. Ad Materials
- Advertiser will submit the Ad Materials to be associated with an Order to TRAFFIQ no later than two (2) business days prior to the Order Commencement Date.
- All Ad Materials submitted by Advertiser must conform to TRAFFIQ’s then existing advertising criteria and specifications, including any applicable Policies, content limitations, technical specifications and anti-competitive guidelines, including as described in the Offer. Where the Ad Materials submitted by Advertiser do not conform to the requirements of this Section 5(b), TRAFFIQ will use commercially reasonable efforts to notify Advertiser within two (2) business days of its receipt of such Ad Materials.
- TRAFFIQ reserves the right to reject any Ad
Materials that do not conform to the requirements of
Section 5(b), as determined in its sole discretion, or
that do not comply with any applicable law, regulation
or other judicial or administrative order, as determined
in its sole discretion. In addition, TRAFFIQ reserves
the right to reject any Ad Materials that are or may
tend to bring disparagement, ridicule, or scorn upon
TRAFFIQ, TRAFFIQ’s Participating Publishers, or
any of their respective Affiliates. If TRAFFIQ rejects
any Ad Materials pursuant to this Section 5(c), TRAFFIQ
may either (i) provide Advertiser with notice of
rejection and an opportunity of up to two (2) business
days to cure whatever deficiency TRAFFIQ has determined
exists with respect to the Ad Materials, or (ii) cancel
the Order in its entirety.
- TRAFFIQ will not and will instruct the Participating
Publisher for an Order to not edit or modify any Ad
Materials in any way, including without limitation,
resizing the Ad Materials, without Advertiser’s
approval. TRAFFIQ will use and will instruct the
Participating Publisher for an Order to use all such Ad
Materials in strict compliance with this Agreement.
6. Reports; Third Party Ad Servers; Under-Delivery
- Within two (2) days of the Order Commencement Date,
TRAFFIQ will make available to Advertiser, via the
TRAFFIQ Advertiser Account, reports that (i) confirm
that Inventory has begun delivery in accordance with the
terms of the Order, and (ii) detail fulfillment of the
terms of the Order on at least a daily basis, based on
TRAFFIQ’s proprietary ad server. Advertiser
accepts the availability of all such Reports from the
TRAFFIQ Advertiser Account as TRAFFIQ’s
fulfillment of its obligations pursuant to this Section
6.
- Advertiser may utilize a Third Party Ad Server for
purposes of independently tracking the delivery of the
Ads into the Inventory in accordance with the terms of
the Order. Advertiser will provide TRAFFIQ with the
specifications for its Third Party Ad Server no later
than two (2) business days prior to the Order
Commencement Date. Advertiser may not substitute its
Third Party Ad Server at any time after its submission
of its specifications pursuant to this Section 6(b). The
Parties agree to work in good faith to integrate
Advertiser’s Third Party Ad Server tags prior to
the Order Commencement Date. The Parties further agree
to give reciprocal access to relevant and
non-proprietary statistics from each other’s ad
server, or if such is not available, to provide regular
activity reports to each other on an Order by Order
basis.
- TRAFFIQ will monitor the delivery of the Ads into
the Inventory in accordance with the terms of the Order
and will notify Advertiser as soon as reasonably
practicable via the TRAFFIQ Advertiser Account or in
writing, at its discretion, if TRAFFIQ believes that an
Under-Delivery is likely or has occurred. Similarly,
Advertiser may notify TRAFFIQ if it believes an
Under-Delivery is occurring based on information derived
from its Third Party Ad Server, if any. Notwithstanding
the foregoing, if it appears that the Order is likely
not to be fulfilled in its entirety, the Parties will
work in good faith to resolve any disputes that may
arise with respect to same.
7. Order Suspension
-
Advertiser will have the right to suspend the Order in the following circumstances:
- TRAFFIQ violates Sections 4(b) and/or 5(d) of this Agreement;
- TRAFFIQ fails to timely conform to Sections 4(c) or 6(a) of this Agreement;
- TRAFFIQ is unable to integrate Advertiser’s
Third Party Ad Server tags for an Order prior to the
Order Commencement Date pursuant to Section 6(b);
- Advertiser provides TRAFFIQ with notice pursuant to
Section 6(c) that an Under-Delivery has occurred
pursuant to Section 6(c), provided that (1) at least
seven (7) days have elapsed since the Order Commencement
Date and TRAFFIQ has been afforded seven (7) days to
cure such Under-Delivery, or (2) in the case where an
Order delivery time is for fourteen (14) days or less,
at least twenty-five percent (25%) of the Order delivery
time has passed and Advertiser has provided TRAFFIQ with
at least an additional twenty-five percent (25%) of the
Order delivery time to cure such Under-Delivery;
- Advertiser’s Third Party Ad Server is not
functioning properly, provided that such suspension will
be limited to one (1) time and for no longer than 72
hours, during which time Advertiser must either provide
notice that such Third Party Ad Server is again
functional or load the Ad Materials into TRAFFIQ’s
ad server; and/or
- TRAFFIQ commits a material breach of this Agreement
that is capable of cure.
-
TRAFFIQ will have the right to suspend the Order in the
following circumstances:
- Advertiser violates Sections 5(a), 5(b) and/or 5(c)
of this Agreement;
- Advertiser fails to timely conform to Section
6(b);
- TRAFFIQ is unable to integrate Advertiser’s
Third Party Ad Server tags for an Order prior to the
Order Commencement Date pursuant to Section 6(b);
- Advertiser’s Third Party Ad Server is not
functioning properly, provided that such suspension will
be limited to one (1) time and for no longer than 72
hours, during which time Advertiser must either provide
notice that such Third Party Ad Server is again
functional or load the Ad Materials into TRAFFIQ’s
ad server; and/or
- Advertiser commits a material breach of this
Agreement that is capable of cure.
- Each such suspension pursuant to this Section 7
will, unless otherwise provided for in Sections 7(a) or
7(b) above, be effective until a time within one (1)
business day after the cure to the reasonable
satisfaction of the Party invoking its suspension rights
of the condition or conditions that gave rise to such
suspension, provided that notice of cure is provided to
the Party invoking its suspension rights, and provided
further that if the condition or conditions that gave
rise to such suspension have not been cured within three
(3) business days of the initial notice of suspension
(unless a longer or shorter period is specified in
Sections 7(a) or 7(b) above), the Party that invoked
such suspension right will be able to avail itself of
the Order cancellation rights set forth in Section 8
hereof, where applicable.
8. Order Cancellation
- Advertiser will have the right to cancel the Order
in the following circumstances:
- TRAFFIQ fails to cure any condition that gave rise
to a suspension pursuant to Section 7(a) within the time
frame set forth in Section 7(c), except for Section
7(a)(v), which is Advertiser’s obligation and
which will not give rise to a cancellation right to
Advertiser;
- Upon giving TRAFFIQ the proper Cancellation
Notice;
- TRAFFIQ commits a material breach of this Agreement
that is incapable of cure.
-
TRAFFIQ will have the right to cancel the Order in the
following circumstances:
- Advertiser fails to cure any condition that gave
rise to a suspension pursuant to Section 7(b) within the
time frame set forth in Section 7(c), except for Section
7(a)(iii), which is TRAFFIQ’s obligation and which
will not give rise to a cancellation right to
TRAFFIQ;
- Advertiser commits a material breach of this
Agreement that is incapable of cure.
- Any cancellation pursuant to this Section 8 will be
effective within one (1) business day of notice to the
other Party hereto. TRAFFIQ will cease delivery of the
Ads into the Inventory within twenty-four (24) hours of
the effective time of such cancellation and the Parties
will then undertake the order resolution process set
forth in Section 9 hereof.
9. Order Resolution; Payment
- Within one (1) business day after the Order
Resolution Date, a Final Report as to fulfillment of the
Order will be available to Advertiser via the TRAFFIQ
Advertiser Account. This Final Report will set forth the
total Ads delivered into the Inventory as of the Order
Resolution Date based upon TRAFFIQ’s ad serving
count, as well as the Final Sale Price, which will be
calculated by multiplying the Sales Price by the
Fulfillment Rate. The Final Sale Price will then be
deducted from Advertiser’s Available TRAFFIQ Funds
as payment in full for the Order, subject to the
provisions of Section 9(b) hereof with respect to
account reconciliation. Where Advertiser has utilized a
portion of its available Trade Credit to pay the Final
Sale Price, the invoicing for payments owed to TRAFFIQ
will be done in accordance with Section 9(c) below. For
purposes of clarity, the methodology utilized by TRAFFIQ
to calculate the delivery of the Inventory is available
at TRAFFIQ.com/policies.
- If Advertiser has utilized a Supported Third Party
Ad Server for purposes of independently tracking the
delivery of Ads into the Inventory in accordance with
the terms of the Order, pursuant to Section 6(b) hereof,
and Advertiser believes that the Final Report prepared
by TRAFFIQ pursuant to Section 9(a) above is inaccurate,
Advertiser may within fifteen (15) days of the Order
Resolution Date submit a written request for
reconciliation of reports to TRAFFIQ. Upon timely
receipt of the request for reconciliation, the Parties
agree to review in good faith both TRAFFIQ’s Final
Report, including supporting materials and data related
thereto, and Advertiser’s figures derived from its
Supported Third Party Ad Server, including supporting
materials and data related thereto. If
Advertiser’s figures from its Supported Third
Party Ad Server are no more than ten percent (10%) less
than those used by TRAFFIQ to arrive at the Final Sale
Price, the Parties agree that TRAFFIQ’s numbers
will be controlling and there shall be no further right
or remedy available to Advertiser. If Advertiser’s
figures from its Supported Third Party Ad Server are
more than ten percent (10%) less than those used by
TRAFFIQ to arrive at the Final Sale Price, the Parties
agree to accept Advertiser’s figures from its
Supported Third Party Ad Server to calculate the Final
Sale Price and Advertiser shall be responsible such
Final Sale Price plus ten percent (10%).
- If Advertiser has utilized Trade Credit previously
granted by TRAFFIQ to Accept an Offer and/or to
ultimately settle the Final Sales Price of an Order,
Advertiser agrees to pay the outstanding balance for
such utilized Trade Credit within thirty (30) days of
receipt of the Final Report. Notwithstanding the
foregoing, when an Order length spans at least two
calendar months and Advertiser has utilized Trade Credit
to Accept the Offer underlying such Order, Advertiser
agrees to monthly invoicing for such Orders, which will
be calculated by TRAFFIQ as of the last day of each
calendar month during an Order, as if such date was the
Order Resolution Date, except the last month of any such
Order, which will be calculated as of the actual Order
Resolution Date in accordance with Section 9(a) above.
TRAFFIQ will send Advertiser an invoice for any such
monthly bills to the TRAFFIQ Advertiser Account.
Advertiser accepts the availability of all reports and
invoices required pursuant to this Section 9(c) as
TRAFFIQ’s fulfillment of its obligations to
provide same.
10. Non-Disclosure; Data Ownership; Privacy
- Advertiser may, from time to time, create RFPs to be
viewed on the www.TRAFFIQ.com
website or sent privately through the TRAFFIQ
Marketplace by one or more Participating Publishers,
setting forth the types of Inventory that the Advertiser
is seeking and the price at which it would consider
purchasing such Inventory. Since all such information
will be available through a publicly accessible website
(though restricted in the case of privately sent RFPS),
no such information will be deemed Confidential
Information. Additionally, Advertiser may, from time to
time, Accept RFPs from Participating Publishers. The
Participating Publisher will be under no obligation to
keep any information relating to any such transaction as
Confidential Information, including without limitation,
the Sales Price, the Inventory purchased, or the overall
performance of the Inventory on an aggregated basis with
other sales, if any, of that Inventory to Advertiser and
other participating advertisers. Additionally, and
notwithstanding anything to the contrary set forth
above, Advertiser understands and agrees that TRAFFIQ
may (i) aggregate and use data and information about
transactions occurring through the TRAFFIQ Marketplace,
(ii) use data and information about single transactions
occurring through the TRAFFIQ Marketplace (provided such
information will not be capable of specifically
identifying Advertiser, unless Advertiser agrees to be
identified in advance), and/or (iii) use data about the
performance of Advertiser’s campaign for its own
use, and in order to deliver, disseminate, publicly
broadcast, publicize and otherwise fully disclose such
data and/or information to any person or entity and in
any manner it determines in its sole discretion
(provided such information will not be capable of
specifically identifying Advertiser, unless Advertiser
agrees to be identified in advance). Any such
disclosures pursuant to the immediately preceding
sentence shall not be deemed to be a breach of
TRAFFIQ’s confidentiality obligations set forth in
this Section 10. Advertiser agrees that TRAFFIQ may
issue a press release announcing Advertiser’s
registration with TRAFFIQ and may use its logo in
promoting TRAFFIQ and/or the availability of
Advertiser’s RFPs, if any, through TRAFFIQ.
- Notwithstanding anything contained in this Agreement
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. Additionally, 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.
- 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 agreed to in writing by both
Parties. TRAFFIQ, TRAFFIQ’s Participating
Publishers, Advertiser, and, if Advertiser is an agency,
Advertiser’s client shall post on their respective
Web sites their privacy policies and adhere to their
privacy policies, which abide by the applicable
laws.
11. Disclaimer of Warranties
ALL OF THE SERVICES AND TECHNOLOGY PROVIDED BY
TRAFFIQ, INCLUDING WITHOUT LIMITATION THE TRAFFIQ
MARKETPLACE, AS WELL AS ALL CONTENT, DATA, MATERIALS,
AND DOCUMENTATION PROVIDED BY TRAFFIQ AND ITS SUPPLIERS
AND AFFILIATES PURSUANT TO THIS AGREEMENT AND IN
FULFILLMENT OF AN ORDER ARE PROVIDED “AS-IS”
AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS
OR WARRANTIES OF ANY KIND, UNLESS OTHERWISE SET FORTH IN
THIS AGREEMENT. TRAFFIQ AND ITS SUPPLIERS AND AFFILIATES
MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF
LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE OR NON- INFRINGEMENT OF THIRD
PARTY RIGHTS OR ANY IMPLIED WARRANTIES ARISING OUT OF
COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF
TRADE. TRAFFIQ DOES NOT WARRANT THAT THE SERVICES AND
TECHNOLOGY PROVIDED BY TRAFFIQ AND ITS SUPPLIERS AND
AFFILIATES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED,
COMPLETELY SECURE OR VIRUS-FREE.
12. Limitation of Liability
EXCLUDING A PARTY’S INDEMNIFICATION OBLIGATIONS
UNDER SECTION 14 OR DAMAGES THAT RESULT FROM A
PARTY’S BREACH OF SECTION 10 OR INTENTIONAL
MISCONDUCT BY A PARTY, IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER PARTY HERETO FOR ANY CONSEQUENTIAL,
INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY
DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION,
DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS
OF INFORMATION AND THE LIKE, INCURRED BY THE OTHER PARTY
ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN
THIS AGREEMENT, IN NO EVENT WILL TRAFFIQ’S
LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE
OF ACTION WHATSOEVER EXCEED THE AGGREGATE FINAL SALES
PRICES OF ALL ADVERTISER’S ORDERS HAVING AN ORDER
RESOLUTION DATE WITHIN THREE (3) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH
LIABILITY.
13. Term and Termination
- This Agreement will be effective upon the earlier of
(i) the submission by Advertiser of a RFP, or (ii) the
signature of an authorized representative of both
Parties hereto and shall continue for a period of one
(1) year (the “Initial Term”), unless
terminated earlier pursuant to the terms hereof. This
Agreement shall be automatically renewed for each
subsequent one (1) year period thereafter (each, a
“Renewal Term” and together with the Initial
Term, the “Term”) unless either party gives
the other written notice of cancellation at least thirty
(30) days prior to the expiration of the Initial Term or
any Renewal Term.
- Notwithstanding anything to the contrary set forth
in this Agreement, including without limitation the
provisions of Section 13(a) above, this Agreement may be
sooner terminated as follows:
- Either Party may terminate this Agreement effective
immediately if the other Party is in default of any
material obligation under this Agreement, and such
default shall have continued un-remedied for a period of
ten (10) days following written notice of such default
given by the non-defaulting Party to the defaulting
Party;
- Either Party may terminate this Agreement, effective
immediately, if the other Party is adjudicated bankrupt,
becomes insolvent, voluntarily or involuntarily
commences liquidation, if a receiver (temporary or
permanent) for its property or a part thereof is
appointed by a court of competent jurisdiction and not
dismissed within 30 days after appointment, if it makes
a general assignment for the benefit of creditors, or if
execution is levied against substantially all of its
property or which would have an adverse effect of the
operation of its business and is not removed within
thirty (30) days;
- Either party may terminate this Agreement, at any
time, for any reason or no reason at all, upon forty
five (45) days prior written notice is given to the
other party.
- Upon the effective date of termination, all rights and obligations of the
Parties will terminate except:
- Each Party must fulfill whatever remaining duties or
obligations it has with respect to any outstanding Order
until such Order is complete and fully reconciled;
- Each Party’s duty of confidentiality pursuant
to this Agreement;
- Any indemnification obligation owed by a Party to
the other Party hereto pursuant to this Agreement;
and
- Advertiser’s obligation to make payment to
TRAFFIQ in accordance with the terms of this
Agreement.
14. Indemnification
- Advertiser agrees to defend, indemnify and hold
harmless TRAFFIQ, its Affiliates and their respective
directors, officers, employees and agents from Losses
incurred as a result of a third party claim, judgment
and/or proceeding relating to or arising out of
Advertiser’s breach of this Agreement.
- TRAFFIQ agrees to defend, indemnify and hold
harmless Advertiser, its Affiliates and their respective
directors, officers, employees and agents from Losses
incurred as a result of a third party claim, judgment
and/or proceeding relating to or arising out of
TRAFFIQ’s breach of this Agreement.
- If any action will be brought against either Party
(the “the Indemnified Party”) with respect
to any allegation for which indemnity may be sought from
the other Party (the “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.
15. Miscellaneous
- This Agreement constitutes the entire agreement of
the Parties with respect to the specific subject matter
hereof and supersedes all previous communications,
representations, understandings, and agreements, either
oral or written, between the Parties with respect to the
subject matter hereof, except that, unless specifically
contradicted by the terms of this Agreement, the TRAFFIQ
Terms of Use shall govern your usage of the TRAFFIQ
Marketplace and the Services (as defined therein).
- Where this Agreement is executed in paper format by
the Parties, this Agreement may be executed in
counterparts, each of which shall be an original and all
of which together shall constitute one and the same
document. By submitting a RFP on the TRAFFIQ
Marketplace, Advertiser agrees to be bound by all of the
terms and conditions of this Agreement.
- TRAFFIQ represents and warrants that TRAFFIQ has all
necessary permits, licenses, and clearances to sell the
Inventory represented in the Offer and to otherwise
perform its obligations under this Agreement, subject to
the terms and conditions of this Agreement, including
any applicable Policies. Advertiser represents and
warrants that Advertiser has all necessary permits,
licenses and clearances to use the content contained in
the Ad Materials and to otherwise perform its
obligations under this Agreement, subject to the terms
and conditions of this Agreement, including any
applicable Policies. Each Party represents and warrants
that by entering into this Agreement with the other, it
is not breaching any duty or obligation to any
third-party and that the person executing or otherwise
agreeing to be bound this Agreement on behalf of it is
the duly authorized representative of such Party and
authorized to bind it to the terms of this Agreement.
Each Party further represents and warrants that it 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.
- 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 TRAFFIQ’s prior written approval will be
null and void. All terms and provisions of this
Agreement will be binding upon and inure to the benefit
of the Parties hereto and their respective permitted
transferees, successors and assigns. The failure by any
Party to exercise or enforce any of the terms or
conditions of this Agreement shall not constitute a
waiver of that Party’s rights hereunder to enforce
each and every term and condition of this
Agreement.
- This Agreement shall be governed by the laws of the
State of New York. TRAFFIQ and Advertiser (if Advertiser
is an agency, on behalf of itself only and not its
client(s)) agree that any claims, legal proceeding or
litigation arising in connection with this Agreement
will be brought solely in New York, and the Parties
consent to the jurisdiction of such courts. No
modification of this Agreement shall be binding unless
in writing and signed by both Parties. 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.
- Any notice required to be delivered hereunder shall
be delivered to Advertiser via e-mail at the e-mail
address specified by Advertiser in its TRAFFIQ
Advertiser Account and to TRAFFIQ via e-mail to cs@traffiq.com.
- Neither Party shall be deemed in default hereunder,
nor shall it hold the other Party responsible for, any
cessation, interruption or delay in the performance of
its obligations hereunder and/or under any Order
pursuant to the terms of this Agreement due to causes
beyond its reasonable control including, but not limited
to: earthquake, flood, fire, storm or other natural
disaster, act of God, labor controversy or threat
thereof, civil disturbance or commotion, disruption of
the public markets, war or armed conflict or the
inability to obtain sufficient material, supplies,
labor, transportation, power or other essential
commodity or service required in the conduct of its
business, including Internet access, or any change in or
the adoption of any law, ordinance, rule, regulation,
order, judgment or decree.
- The Parties hereto are independent contractors. This
Agreement shall not be construed to create a joint
venture or partnership between the Parties. Neither
Party shall be deemed to be an employee, agent or legal
representative of the other for any purpose, and neither
shall have any right, power or authority to create any
obligation or responsibility on behalf of the other
except as specifically set forth herein.
- The section headings contained in this Agreement are
solely for the purpose of reference, are not part of the
agreement of the Parties, and will not in any way affect
the meaning or interpretation of this Agreement.
Appendix A
Definitions
“Accepted,” “Acceptance,” and/or “Accept” means the acceptance by Advertiser of an Offer submitted by a Participating Publisher.
“Ad” means one component of the Ad Materials, specifically an advertisement in its graphical-, audio-, video-, multimedia- and/or text-based form.
“Ad Materials” means an Ad and all related technical features, including without limitation, artwork, copy, active URLs, images, Flash, rich media, and/or audio/video files, as well as other creative elements.
“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.
“Available TRAFFIQ Funds” means Cash Funds, Trade Credit and/or Promotional Funds available for use by Advertiser to Accept an Offer and/or to pay the Final Sale Price for any completed Order.
“Cancellation Notice” means that number of business days (as set forth in the Offer, but no less than 1) of notice required by Advertiser to cancel an Order, as set forth in an Offer.
“Cash Funds” means money deposited by Advertiser into its TRAFFIQ Advertiser Account via credit card, check or wire transfer to Accept an Offer and/or to pay the Final Sale Price for any completed Order, which funds may be remitted to Advertiser upon request.
“Click” means a hypertext link contained within an Ad that has been followed by an Internet end user by clicking on or otherwise selecting the hypertext link with a mouse or any other peripheral device, which successfully directs the end user to another website (typically the Advertiser’s or the Advertiser’s client’s).
“Confidential Information” means that information which a Party to this Agreement receives from the other Party to this Agreement which the receiving Party agrees not to disclose and to use only for purposes of fulfilling its obligations under the Agreement.
“Final Report” means the report prepared by TRAFFIQ following the Order Resolution Date, which outlines the total Inventory delivered pursuant to an Order based on TRAFFIQ’s ad serving, tracking and reporting interface.
“Final Sale Price” means the Sales Price multiplied by the Fulfillment Rate, subject to adjustment in accordance with Section 9(b) of this Agreement.
“Fulfillment Rate” means the total Inventory actually delivered to Advertiser as of the Order Resolution Date divided by the total Inventory set forth in the Offer from which the Order was created, provided that such number will never exceed 1.0.
“Impression” means an occasion of the display of an Ad to an Internet end user.
“Inventory” means available advertising space on a Site to which Ads will be delivered for which a specific event must occur in order to be recorded (i.e., an Impression or a Click) and which has various attributes associated with it (i.e., text or display, rich media, geographically filtered, demographic information, time of day for delivery, etc…).
“Losses” means any and all damages, liabilities, costs and expenses, including reasonable attorneys’ fees.
“Offer” means a submission through the TRAFFIQ Marketplace by a Participating Publisher of a description of available inventory it is willing to sell in response to an RFP from Advertiser, including any editorial adjacencies associated with the Inventory, the Inventory availability dates, the Cancellation Notice, and any other information relevant to the Inventory, that will be sold upon Advertiser accepting such Offer.
“Order” means the confirmed Acceptance of an Offer, pursuant to which the TRAFFIQ Marketplace will facilitate delivery of the Inventory to Advertiser in accordance with the terms set forth in the Offer, including without limitation, the delivery timeframes.
“Order Commencement Date” means the actual date on which the delivery of the Inventory is scheduled to commence.
“Order Resolution Date” means the earlier to occur of (i) the date on which delivery of Inventory pursuant to the Order is completed, (ii) the last date for delivery of the Inventory as specified in the Order, whether all of the Inventory is delivered or not, or (iii) the date on which the Order is cancelled early pursuant to Section 8 of this Agreement, and where the Order length spans at least two calendar months, (iv) the end of each calendar month during such term, provided (i), (ii) or (iii) shall not have occurred earlier, and provided further that there may be, in such instances, and likely will be, multiple such dates per Order.
“Participating Publisher” means the entity that owns or validly represents the Site referenced in an Offer.
“Policies” means the advertising and publishing criteria and specifications, including without limitation, content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with TRAFFIQ and TRAFFIQ’s Participating Publishers’ public image, community standards regarding obscenity or indecency (taking into consideration the Site), and other publication, editorial and/or advertising policies, all of which are set forth at TRAFFIQ.com/policies.
“Promotional Funds” means funds that TRAFFIQ may make available in a TRAFFIQ Advertiser Account for use by Advertiser to Accept an Offer and/or to pay the Final Sale Price for any completed Order, which funds can not be dispersed to Advertiser for any reason.
“RFP” means a request for proposal submitted by Advertiser by which it solicits an Offer from one or more Participating Publishers for particular types of Inventory usually at certain times.
“Sales Price” means the price set forth in an Offer which has been Accepted by Advertiser.
“Site” means the Internet website(s) or other interactive digital platform set forth in an Offer for which Inventory is available and to which the Ad Materials will be delivered.
“Supported Third Party Ad Server” means any Third Party Ad Server set forth at www.iab.net/standards/measurement.asp.
“Terms of Use” means the terms and conditions for use of the www.TRAFFIQ.com website located at www.TRAFFIQ.com/terms, as may be amended from time to time.
“Third Party Ad Server” means a computer server that stores advertisements and/or delivers them to a specified website upon receiving an ad request from another server.
“Trade Credit” means funds that TRAFFIQ may make available in a TRAFFIQ Advertiser Account for use by Advertiser to Accept Offers and/or to pay the Final Sale Price for any completed Order, which funds can not be dispersed to Advertiser for any reason.
“TRAFFIQ Advertiser Account” or “Registered Account” means the unique account established by Advertiser and which is used by Advertiser to set-up and fund advertising campaigns, Accept Offers, run reports about Advertiser’s campaigns and transactions, both ongoing and historical, and to undertake research about the Internet advertising market and industry.
“TRAFFIQ Marketplace” means the Internet-based application and service available to Advertiser, other participating advertisers and Participating Publishers of Internet advertising Inventory with and through which Advertiser can submit RFPs and Participating Publishers can submit Offers in response thereto, and once an Order is created, the Inventory is delivered, tracked and monitored, and transactions and payments are settled.
“Under-Delivery” means an occurrence when the amount of Inventory actually delivered pursuant to an Order is less than seventy-five (75%) of the Inventory that should be delivered during the Order on a pro rata basis. For example, if 10,000,000 Ad impressions are to be delivered over a 10 day period, and through day 7 (when 7,000,000 Ad impressions should have been delivered on behalf of Advertiser), less than 5,250,000 Ad impressions (75% of 7,000,000) have actually been delivered on behalf of Advertiser, an Under-Delivery will be deemed to have occurred.