ADVERTISER TERMS AND CONDITIONS
Definitions. As used in these Terms and Conditions attached to this Advertising Placement Insertion Order (the “Order”), "Company" shall refer to Samba Media SL; “Publishers” shall refer to each and every owner of web sites represented by Samba Media; “Advertiser” shall refer to the Advertiser identified on the first page of this Order and its affiliates, successors and assigns; “Agency” shall refer to Advertiser’s agent(s) and advertising agency if this Order is executed by an Agency, and “Purchaser” shall refer to the Advertiser or Agency executing the Order.
1. Purchaser's Representations and Warranties. Purchaser represents and warrants that: 1.1. It is authorized to bind Advertiser and Agency (if any) to the terms and conditions of this Order;
1.2. It has the full legal authority to use and to authorize others to use all elements in and pertaining to the advertising submitted to Company for insertion (the “Advertising”), including without limitation (i) the names, likenesses, biographical information and/or any other identifying attributes of any individual who is identifiable in the Advertising; (ii) all elements of the Advertising that are subject to protection under any and all intellectual property law, including without limitation, the copyright, trademark, unfair competition and/or patent laws and regulations of any jurisdiction in which the Advertising may be exhibited; (iii) all “testimonials” (as that term is commonly understood in the advertising industry) and/or endorsements contained in the Advertising;
1.3. No claim has been made that Purchaser does or may not have any right with respect to the Advertising that is reasonably necessary to effectuate the purposes of the Order hereunder, and there is not now valid or outstanding;
1.4. No portion of the Advertising has been wrongfully taken from any other work and there has been no claim that the Advertising violates, conflicts with, or infringes upon, and the Advertising does not violate, conflict with or infringe upon, any rights whatsoever (including, without limitation, any copyright, common law or statutory, throughout the world; any right of publication, performance, or any other right in any work; and any right against libel, slander, invasion of privacy or similar right) of any person, firm or corporation;
1.5. The Advertising and all elements thereof are not subject to any third party claims, and the Advertising and all elements thereof have been fully cleared by Purchaser for all uses set forth herein, and no payments will be required to be made to any third party in connection with the use of the Advertising (or, if any such payments are required, Purchaser will be solely responsible therefore and indemnify and hold harmless Company in connection therewith); and
1.6. The Advertising shall not launch pop-ups, auto-install executables, ActiveX, prompted executables, hidden browser windows, or other non-specified and questionable media content. Violators of this restriction will be subject to immediate termination, legal action for user and brand damages, and a financial penalty by Company or its respective publishers. Agencies, Brokers, and Media Buyers representing advertisers are completely responsible for all and any such activity on this campaign and will be considered completely liable.
2. Cancellation. Cancellations must be made in writing five (5) days in advance of the Order’s Start Date. Purchaser shall be fully liable for the cost of placements ordered and not cancelled prior to five (5) days before such order is scheduled to run. In the event that placement of Advertising is ordered and Purchaser fails to deliver the Advertising in a technical and physical form and manner that Company directs as necessary for proper placement and exhibition, Purchaser shall be liable for the cost of such placement, even if such Advertising is not, in fact, places and/or exhibited. Cancellations of live campaigns require two (2) business day written notice. All unused funds will be returned within 10 days.
3. Discounts. Purchaser understands that all frequency and/or volume discounts are based on the Purchaser’s fulfillment of the schedule indicated on this Order. If, for any reason, this schedule is not fulfilled during the term provided for herein and/or cancelled pursuant to paragraph 2 above, Purchaser agrees to pay the standard rate on all advertising run.
4. Traffic Reports. Company will report traffic to Purchaser in a manner and on a schedule determined by Company unless otherwise requested in writing by the Purchaser and agreed to in writing by Company. Payment to Company shall be due and payable at the rate and full amount provided for herein, based upon the measurement criteria (e.g. impressions, etc.) as reported to Purchaser by Company.
5. Billing & Collections. Invoices may be rendered on the Start Date of the contract period set forth in the Order. Payment in full must be made to Company before any advertising shall be run. Any campaign affected by late creative will be billed at a pro-rated amount after seventy two (72) hours.
6. Advertising Delivery. Company does not guarantee any given level of circulation, distribution, reach or readership for any advertisement. In the event that the Publishers(s) purchased are unable to deliver the quantity of impressions contracted for within the time specified herein, then the campaign will continue until the contracted-for quantity of impressions is served.
7. Rejection of Advertising. Company reserves the right, without any liability whatsoever, to reject, omit or exclude any Advertising for any reason at any time, with or without notice to Purchaser, and whether or not such Advertising was previously acknowledged, accepted or published.
8. No Exclusivity. Purchaser expressly acknowledges that Company may represent other advertisers and agencies (including Company's affiliates) and may secure the placement and exhibition of advertising, in a similar capacity to that contemplated hereunder, and nothing contained herein shall be construed to limit Company's right to do so.
9. Indemnification. Purchaser agrees to indemnify and hold harmless Company, its affiliates, subsidiaries, successors and assigns from any claim, action, judgment, or liability, threatened or adjudicated, of any kind arising out of or in connection with any breach by Advertiser and/or Agency of any representation, warranty or agreement in this Order and Purchaser shall promptly reimburse Company for any sums, costs or expenses (including, without limitation, reasonable attorney's fees and expenses, settlement costs and disbursements) incurred by Company in connection therewith.
10. LIMITATION OF LIABILITY. Purchaser agrees that Company shall not be liable for (i) any delays in the delivery and/or non-delivery of any Advertising placement; (ii) anything affecting the production of an Advertising placement in the event of an act of God, action by any government entity, network difficulties, electronic malfunction or any condition beyond the control of Company (iii) consequential damages of any nature whatsoever; and/or (iv) errors or omissions in the Advertising as it is exhibited to the public. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL COMPANY’S LIABILITY HEREUNDER EXCEED THE PAYMENTS MADE BY PURCHASER DURING THE PRECEDING 12 MONTHS
11. Remedy at Law. In the event of any dispute arising out of or relating to this Order, Purchaser’s sole remedy shall be an action for damages at law. Purchaser expressly waives any and all equitable rights they may have hereunder, including without limitation any right to enjoin, rescind, terminate or otherwise interfere with Company's delivery, placement and exhibition of any Advertising whatsoever.
12. Legal Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, Company shall be entitled to reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may be entitled.
13. Governing Law. The parties agree that this Order will be construed in all respects in accordance with the laws of Spain applicable to agreements entered into and to be wholly performed therein, and, in the event of any dispute related to the subject matter of this Order, the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts located in Santa Cruz de Tenerife, Spain.
14. Notice. All notices and approvals desired or required to be given to either party hereunder shall be in writing and shall be deemed given when delivered via (i) certified mail, return receipt requested, all charges prepaid, (ii) Federal Express, UPS One-Day Service, or other similar overnight courier service, with proof of sending, or (iii) hand delivery, with acknowledgement of receipt, transmission, in each case to the other party’s address set forth herein
15. Assignment. Neither party may assign this Order, in whole or in part, without the other party’s prior written consent, except that either party may assign this Order without consent of the other in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Order other than as permitted herein will be null and void. Without limiting the foregoing, this Order will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
16. Severability. If any term or provision of this Order is declared illegal, invalid or unenforceable, the parties intend that the remainder of this Order shall not be affected thereby and that, in lieu of any such stricken provision, there shall be added as a part hereof, a substitute provision as similar in substance to the illegal, invalid or unenforceable term or provision as may be possible.
17. No Partnership. Nothing contained in this Order shall be construed to constitute a partnership or joint venture or any other fiduciary relationship. Neither party is the employee, agent, partner or joint venturer of the other, it being understood and agreed that the relationship of the parties is that of independent contractors.
18. Defaults; No Waiver. No waiver by either party of any default hereunder shall constitute a waiver by such party of any subsequent default, whether such subsequent default is similar in nature to any previously waived default. All remedies under this Order or under law or otherwise shall be cumulative and not alternative.
20. Entire Agreement. This Order is intended by the parties hereto as a complete and final expression of their agreement and understanding with respect to the subject matter hereof. This Order may not be changed or modified, or any covenant or provision hereof waived, except by an agreement in writing, signed by the party against whom enforcement of the change, modification or waiver is sought, and not otherwise.
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