TERMS AND CONDITIONS
1. Advertising. CIOZone shall use its diligent efforts to provide the Internet-related advertising specified in the Insertion Order. Any advertising submitted by Advertiser/Agency must be in form and substance acceptable to CIOZone.
2. Payments. Advertiser/Agency shall pay the fee set forth in the Insertion Order to CIOZone, due and payable as indicated therein.
a. Invoices. The initial invoice will be sent upon completion of the first month's delivery or within 30 days of completion of the IO, whichever is earlier. Invoices are to be sent to Advertiser/Agency's billing address as set forth in the IO. All invoices pursuant to the IO must be received within 180 days of delivery of all Deliverables. CIOZone will invoice Advertiser/Agency for the services provided on a calendar month basis with the net cost (e.g. the cost after subtracting Agency commission) based on actual delivery or based on prorated distribution of delivery over the term of the IO.
b. Payment Date. Advertiser/Agency will make payment 30 days from receipt of invoice, or as otherwise stated in a payment schedule set forth in IO.
3. Cancellation and Termination.
a. At any time prior to the serving of the first impression of the IO, Advertiser/Agency may cancel IO prospectively with 30 days prior written notice, without penalty. (i.e. If Advertiser/Agency cancels the IO 15 days prior to the serving of the first impression, Advertiser will only be responsible for the first 15 days of the IO.)
b. Upon the serving of the first impression of the IO, Advertiser/Agency may cancel the IO prospectively for any reason, without penalty, by providing CIOZone written notice of cancellation which will be effective after the later of: (i) 30 days after serving the first impression of the IO; or (ii) 14 days after providing CIO Zone with such written notice.
c. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder that is not cured within 10 days after written notice thereof from the non-breaching party.
d. Short rates will apply to canceled buys to the degree stated on the IO.
Makegoods.
a. CIOZone shall monitor delivery of the Ads, and shall notify Advertiser/Agency either electronically or in writing as soon as possible (and no later than two weeks before IO end date unless the length of the campaign is less than two weeks) if CIOZone believes that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for makegood consistent with these Terms and Conditions.
b. In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any Ad (placement or creative unit), Advertiser/Agency and CIOZone will make an effort to agree upon the conditions of a makegood flight either in the IO or at the time of the shortfall. If no makegood can be agreed upon, Advertiser/Agency may execute a credit equal to the value of the under-delivered portion of the contract IO for which it was charged.
5. Bonus Impressions.
Where Advertiser/Agency utilizes a 3rd Party Ad Server, CIOZone will not bonus more than 10% above the Deliverables specified in the IO without prior written consent from Advertiser/Agency. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad served activity. Advertiser/Agency will not be charged by CIOZone for any additional Ads above any level guaranteed or capped in the IO. If a 3rd Party Ad Server is being used and Agency notifies CIOZone that the guaranteed or capped levels stated in the IO have been reached, CIOZone will use commercially reasonable efforts to suspend delivery and, within 48 hours, may either 1) serve any additional Ads itself or 2) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser after such notice has been provided and associated with over-delivery by more than 10% above such guaranteed or capped levels.
6. Ad Materials.
It is Advertiser's/Agency's responsibility to submit Advertising Materials in accordance with CIOZone's existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies consistent with CIOZone's public image, community standards regarding obscenity or indecency, other editorial or advertising policies, and material due dates, collectively "Policies").
a. If advertising materials are late, Advertiser is still responsible for the media purchased pursuant to the IO.
b. CIOZone reserves the right within its discretion to reject or remove from its Site any Ads where Advertising Materials or the site to which the Ad is linked do not comply with its Policies. Advertiser will immediately provide acceptable alternative Advertising Materials that comply with CIOZone's Policies.
c. CIOZone will not edit or modify the submitted Ads in any way.
d. When applicable, Third Party Ad Server tags shall be implemented so that they are functional in all aspects.
7. Third Party Ad Servers.
CIOZone will track delivery through its ad server and Advertiser/Agency will also track delivery through its proprietary or subcontracted 3rd Party Ad Server as identified in the IO. Third Party Ad Servers may not be substituted by Advertiser/Agency without CIOZone's consent. Advertiser/Agency and CIOZone agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide weekly placement-level activity reports to each other. In the event that CIOZone's ad server measurements are higher than those produced by the 3rd Party Ad Server by more than 10% over the invoice period, Advertiser/Agency will facilitate a reconciliation effort between CIOZone and 3rd Party Ad Server. If the discrepancy can not be resolved and Advertiser/Agency has made a good faith effort to facilitate the reconciliation effort, the Advertiser/Agency reserves the right to either within 30 days of delivery:
a. Consider the discrepancy and under-delivery of the Deliverables as described in section 4(b) whereupon the parties shall act in accordance with that Section. For the purposes of this section 7(a), delivery of any makegood shall be measured by the 3rd Party Ad Server, or,
b. Pay CIOZone based on the 3rd Party Ad Server reported data, plus a 10% upward adjustment to delivery.
c. Where an Agency is utilizing a 3rd Party Ad Server and that 3rd Party Ad Server cannot serve the Ad, the Advertiser/Agency shall have a one-time right to temporarily suspend delivery under the IO for a period of up to 72-hours. Upon written notification by Advertiser/Agency of a non-functioning 3rd Party Ad Server, CIOZone has 24 hours to suspend delivery. Following that period, Advertiser/agency will not be held liable for payment for any Ad that runs within the immediate 72-hour period thereafter until CIOZone is notified that the 3rd Party Ad Server is able to serve Ads. After the 72-hour period passes and Advertiser/Agency has not provided written notification that CIOZone can resume delivery under the IO, Advertiser will pay for the Ads that would have run or are run after the 72 hour period but for the suspension and can elect CIOZone to serve Ads until 3rd Party Ad Server is able to serve Ads. If Advertiser/Agency does not so elect for CIOZone to serve the Ads until 3rd Party Ad Server is able to serve Ads, CIOZone may utilize the inventory that would have been otherwise used for CIOZone's own advertisements or advertisements provided by a third party. Upon notification that the 3rd Party Ad Server is functioning, CIOZone will have 72 hours to resume delivery.
8. Indemnification.
Advertiser shall at all times defend, indemnify and hold harmless CIOZone and its officers, directors, shareholders, employees, accountants, attorneys, agents, affiliates, subsidiaries, successors, and assigns from and against any and all third-party claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, arising out of or related to the content of Advertiser's advertisements served by CIOZone pursuant to this Agreement and/or any materials to which users can link through those advertisements, including without limitation, any claim of copyright infringement, false advertising, trademark infringement, or violation of right of publicity and defamation.
9. Limitation of Liability
(a) UNDER NO CIRCUMSTANCES SHALL CIOZONE BE LIABLE TO ADVERTISER OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, COSTS OF DELAY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE.
(b) CIOZONE DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING ANY REGARDING MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSES, SUITABILITY, COMPLIANCE WITH LAWS, QUALITY, OR OTHERWISE, WITH RESPECT TO THE CIO ZONE WEB SITE.
(c) IN NO EVENT SHALL CIOZONE BE LIABLE IN ANY WAY FOR AN AMOUNT GREATER THAN THE PAYMENT OWED TO CIOZONE UNDER SECTION 2 ABOVE.
(d) CIOZONE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS CONTAINED IN THIS SECTION 4.
10. Non-Disclosure.
Any marked confidential information and proprietary data provided by one party, including the Ad description, and the pricing of the Ad, set forth in the IO, shall be deemed "Confidential Information" of the disclosing party. Confidential Information shall not be released by the receiving party to anyone except an employee, or agent who has a need to know same, and who is bound by confidentiality obligations.
11. Counterparts and Facsimile Signatures.
This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which together shall constitute a single instrument. Facsimile signatures are acceptable and deemed original signatures.
12. Intellectual Property Rights.
Neither party will acquire any ownership interest in each other's intellectual property. CIOZone shall have the right to place Advertiser's logo, tradename and trademark on any advertising from Advertiser and to otherwise use such items in connection with the purposes of this Agreement.
13. Force Majeure.
Neither CIOZone nor Advertiser shall be liable to the other for any failure or delay in its performance due to any cause beyond its control, including acts of war, acts of God, earthquake, riot, sabotage, labor shortage or dispute, Internet interruption, government acts, and other similar events.
14. Miscellaneous.
This Agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. Each party acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. This Agreement may not be modified or amended, except by an instrument in writing signed by duly authorized officers of both of the parties hereto. This Agreement may be executed in counterparts each of which shall be deemed an original and all such counterparts shall constitute one and the same agreement. This Agreement will be deemed entered into in New York and will be governed by and interpreted in accordance with the laws of the State of New York, excluding that body of law known as conflicts of law. The parties agree that any dispute arising under this Agreement will be resolved solely through confidential binding arbitration in New York, New York before one arbitrator selected by the American Arbitration Association in accordance with its rules. In the event of any dispute, each party shall bear its own attorneys fees, expert witness fees, and ½ of the arbitrator fees. The provisions of this Agreement relating to payment of any fees or other amounts owed, indemnification, confidentiality, limitations of liability and intellectual property shall survive any termination or expiration of this Agreement. The terms of this Agreement are the confidential information of CIOZone. This Agreement has been negotiated and drafted by both parties, with counsel from both parties reviewing the document. The language in this Agreement shall be construed as to its fair meaning and not strictly for or against either party.