December 1st, 2014
THIS IS A BINDING CONTRACT; PLEASE READ THIS AGREEMENT CAREFULLY
Spoutable may amend these Terms at any time by posting the amended Terms on this Site, and you agree that you will be bound by any changes to these Terms. For your convenience, the date of the last revision is included at the top of this page. Spoutable may make changes to the Site and/or the Service at any time. By using this Site, you understand that Spoutable may discontinue or restrict your use of the Site and/or Service for any reason or no reason with or without notice.
Your use of the Site and/or the Service, or by clicking "I ACCEPT" if presented with these Terms in a click-through format, signifies that you agree to these Terms and constitutes your binding acceptance of these Terms, including any modifications that Spoutable makes from time to time.
Standard Terms and Conditions
These Spoutable Standard Terms and Conditions (“Terms”) are entered into by Spoutable, LLC (“Spoutable”) and the entity purchasing advertising on Spoutable (“Customer”). These Terms govern Customer’s use of the Spoutable service, and together with the information entered through the Spoutable dashboard (“Dashboard”) ( an Insertion Order ) comprise the “Agreement” between Spoutable and Customer. If there is any inconsistency between: (i) the terms of a signed Insertion Order or those entered through the Dashboard (either “Campaign Details”), and (ii) these Terms, the Campaign Details as applicable, shall prevail.
1.1 Spoutable partners with a network of online publishers (the “Network”) and presents an interface when a visitor to that publisher’s property leaves (exits). This interface contains links (“Links”) directly to websites and/or content (“Content”). Spoutable receives payment for clicks on these recommended links and shares a percentage of those payments with its Network.
1.2 Spoutable shall display links to textual, visual and/or auditory content selected by Customer on the Network. Customer will only be charged for clicks on these links. Fees will be based on the cost-per-click (“CPC”) multiplied by the number of clicks. The number of clicks and CPC are entered by the Customer in the Spoutable Dashboard at the time of purchase. Spoutable shall continue to display the Links on the Network until the earlier of: (i) reaching the Customer’s maximum budget specified in the Campaign Details (the “Maximum Budget”), or (ii) the end date provided in the Campaign Details.
1.3 Spoutable will make reports available to the Customer, which provide information about the number of clicks received during the campaign. The final monthly reports may differ from the daily reports and the final monthly reports will provide the conclusive basis for Spoutable’s calculation of the fees owed by Customer. Spoutable allows the Customer to submit its own tracking pixel. If there is a 10% discrepancy or more between Customer’s numbers and Spoutable’s numbers then the parties agree to work in good faith to identify the correct amount to be paid to Spoutable. If the discrepancy is less than 10%, Spoutable’s numbers shall be conclusive and final.
1.4 Spoutable does not guarantee: (i) the positioning, timing or placement of delivery of any Lnks, (ii) clicks on any Links, or (iii) conversions. In no event shall Spoutable be liable for failure to provide clicks. If the Links do not receive clicks amounting to the Maximum Budget, Customer’s sole remedies shall be to: (i) extend the end date of the applicable campaign, (ii) replace or add different links (also subject to Section 2 below) to complete the campaign; or (iii) to pay only for actual clicks on the Links.
2.1 Customer authorizes Spoutable to place Links on the Network and is solely responsible for determining the propriety and legality of those Links and the Content to which they link. Links and the destination Content selected by Customer must comply with Spoutables’s content guidelines, as may be updated at any time by Spoutable. At any time and for any or no reason, Spoutable my reject or remove Links. Customer acknowledges that Spoutable takes no responsibility for the Links and the destination Content and that such Content may change at any time during the course of a campaign due to revisions by the Content’s author, comments from readers, or otherwise. Customer acknowledges that, if there is an objection from a Content author or publisher, Spoutable shall cease including Content Links in the Service.
2.2 Customer shall not, directly or indirectly, provide Links to Content that: (i) is obscene, libelous, defamatory, pornographic, slanderous, profane, violent indecent or unlawful; (ii) is factually misleading, inaccurate or deceptive; or (iii) promotes or facilitates any type of illegal activity, including without limitation gambling, pyramid schemes, the sale or use of illicit drugs, or discrimination or harassment of any individual or group.
2.3 Customer represents and warrants that it is authorized to use and/or has approved all Content, Headlines, Copy and Art it uses in campaigns.
2.4 Spoutable reserve the right to create and/or edit the visual Links used to drive visitors to Content. Spoutable takes great care in creating these visual Links in a manner that is consistent with the Content advertised but makes no representations or warranties that these visual Links are an exact representation.
3. Term and Cancellation.
The Campaign Details will set forth the start and end date of a particular campaign. However, the Agreement, or an individual campaign may be terminated or suspended: (i) by Customer for any reason upon three (3) business days’ written notice to Spoutable or within twelve (12) hours through the Dashboard, or (ii) by Spoutable for any reason upon fifteen days (15) days’ written notice to Customer. During the notice period, all previously contracted campaigns shall continue to run pursuant to the Campaign Details and Customer shall be responsible for paying Spoutable for all clicks received during such notice period.
4. Campaign Details
Customer can manage campaigns using the Dashboard to modify the Campaign Details, and/or Customer may work with a Spoutable account manager, as determined by Spoutable. Customer is solely responsible for protecting its login and password to the Dashboard. Customer is solely responsible for all changes requested or approved, including those made through the Dashboard using its login.
5. Fees and Payment Terms
5.1 Customer shall pay Spoutable fees based on the number of clicks on the Links, as measured by Spoutable’s tracking system, multiplied by the CPC. The Campaign Details shall include Customer’s Maximum Budget. Customer may increase the Maximum Budget through the Dashboard or through an amendment to an Insertion Order. Fees will not exceed the Maximum Budget.
5.2 Payment by Customer to Spoutable is done by credit card through the Dashboard before the start of any campaign. Once there is no longer available money in a Customer’s account to pay for additional clicks, campaigns will be put on hold until additional money is added. For the Customer’s convenience, Spoutable gives the Customer an option of automatically adding additional money when the account balance runs low.
6.1 Each party agrees that with respect to any Confidential Information (as defined below) that is disclosed by one party to the other in connection with the Agreement, the party receiving such Confidential Information shall not disclose such Confidential Information to any third party, or use it for any purpose, except in connection to its rights and obligations under the Agreement. “Confidential Information” means all information concerning a party or any of its subsidiaries or affiliates that is marked confidential or proprietary, not generally known to the public, or which under the circumstances ought reasonably to be treated as confidential or proprietary, and includes, without limitation, the terms of the Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (i) was lawfully in the possession of the receiving party as of the time of disclosure; (ii) is, as of the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (iii) is independently developed by the receiving party without reference to the Confidential Information; or (iv) is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed.
6.2 Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. 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 at least as restrictive as these contained herein. Neither party will use any portion of Confidential Information provided by the other party pursuant to the Agreement for any purpose other than as expressly set forth under the Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information strictly necessary to comply with the demands of any court order, law or governmental agency and Spoutable may share Confidential Information of Customer with any holding company of Customer or with any subsidiary company of Customer’s holding company.
7. Additional Representations and Warranties/Disclaimers
7.1 Each party represents and warrants to the other party that: (i) it has all necessary rights and authority to enter into the Agreement and grant the rights and licences under the Agreement; and (ii) the execution or acceptance of the Agreement (which includes the Campaign Details), and the performance of its respective obligations and duties pursuant to the Agreement, do not and will not violate any agreement to which such party is bound.
7.2 Customer further represents and warrants that: (i) the Content does not violate any applicable laws, rules and regulations and will not contain any material which may be harmful, abusive, obscene, threatening or defamatory; (ii) it has all necessary rights to permit and grants Spoutable pursuant to the Agreement all such rights which are necessary for Spoutable to (as applicable) host, use, cache, store, route, copy, distribute modify, reformat, reproduce, display, publish, transmit and distribute the Content and Links; and (iii) use of the Links and Content in accordance with the Agreement will not infringe any intellectual property rights of any third party.
7.3 If Customer is an agency (or other third party acting on behalf of the provider of the Content), Customer represents and warrants that: (i) it is the authorized agent of the provider of the Link and Content; (ii) it has the legal authority to enter into the Agreement and make all decisions and take all actions relating to the provider of the Link and Content; (iii) it has entered into a written agreement granting the agent the authority to represent the provider of the Link and Content in accordance with (i) and (ii) above (and shall submit such agreement to Spoutable on demand).
7.4 EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THE AGREEMENT, SPOUTABLE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED — INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE — ABOUT ITS SERVICES AND THE PERFORMANCE OR SUCCESS OF ANY CAMPAIGNS MADE BY IT ON BEHALF OF CUSTOMER, OR THAT THE SERVICE WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE.
8.1 Each party shall defend, indemnify and hold harmless the other party and its respective agents, affiliates, subsidiaries, directors, officers, employees and contractors against any and all third party claims resulting from the breach of such party’s duties, obligations and representations under the Agreement.
8.2 In connection with any such claim: (i) the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (provided that the failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations in the Agreement, except to the extent it has been damaged thereby); (ii) the indemnifying party shall have sole control of the defense or settlement of the claim (provided that the indemnifying party may not enter into any settlement that may adversely affect the rights or obligations of the indemnified party without the indemnified party’s prior written consent); (iii) at the indemnifying party’s request and expense, the indemnified party cooperating in the investigation and defense of such claim; and (iv) the indemnified party shall have the right to participate in its defense with counsel of its own choosing at the indemnified party’s expense.
9. Limitation of Liability
EXCEPT WITH RESPECT TO CLAIMS ARISING FROM A PARTY’S INDEMNITY OBLIGATIONS, WILLFUL MISCONDUCT OR A BREACH OF THE CONFIDENTIALITY PROVISION IN THE AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, VENDORS OR AGENTS FOR ANY ACTION REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN TORT OR CONTRACT, ARISING UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS IMPLEMENTATION SHALL BE LIMITED TO THE GREATER OF: (I) THE AMOUNT OF FEES PAYABLE BY CUSTOMER UNDER THE AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM; AND (II) $50,000. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST REVENUES OR LOST PROFITS, ARISING OUT OF OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS IMPLEMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1 Neither Party may assign the Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other; provided, however that either party may assign its rights or delegate its duties under the Agreement, in whole or in part, without the other’s consent, in connection with a merger, reorganization or sale of all, or substantially all, of the assignor’s assets, provided that the successor entity shall have sufficient resources to fully perform the Agreement and shall assume the obligation to fully perform the Agreement.
10.2 The Agreement shall be governed by and construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed therein, without regard to that body of law relating to conflict of laws. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of California and of the United States of America, in each case located in the County of San Diego, for any claim arising out of or relating to the Agreement (and agrees not to commence any claim relating thereto except in such courts). The prevailing party in any action arising out of or to enforce the Agreement shall be entitled to recover its reasonable attorney’s fees and costs.
10.3 Spoutable shall have the right to include Customer’s name on Spoutable’s client list and in other marketing materials. No press releases or general public announcements shall be made without the mutual consent of Customer and Spoutable.
10.4 All notices under the Agreement will be in writing and will be delivered by personal service, confirmed fax, express courier, or certified mail, return receipt requested, to the address designated by such party by written notice to the other party from time to time. Notice will be effective on receipt.
10.5 No failure of either party to enforce any of its rights under the Agreement will act as a waiver of such rights. If one or more provisions of the Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from the Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms.
10.6 Neither party shall be liable for any delay or failure to perform any of its obligations set forth in the Agreement due to causes beyond its reasonable control. Neither party shall be liable for any unavailability or inoperability of the Internet, technical malfunction, or computer error or corruption resulting in loss of data or other harm.
10.7 Sections 6, 8, 9 and 10, together with any outstanding undisputed payment obligation, shall survive the termination of the Agreement.
10.8 Customer and Spoutable shall each act as independent contractors. Nothing in the Agreement shall be deemed or create or construed as creating a joint venture or partnership between the parties.
10.9 The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and may not be modified without the prior written consent of both parties. In no event shall any purchase order, insertion order, invoice or other document submitted by Customer concerning the subject matter hereof have any force or effect unless signed by Spoutable.