Marketing Service Agreement

ADVERTISER TERMS & CONDITIONS

 

These NIKIA MEDIA, INC. Advertiser Terms and Conditions (the “Terms”), together with the Insertion Order(s) (collectively referred to as the “Agreement”), shall govern the relationship between NIKIA MEDIA, INC., and “Advertiser” (collectively referred to as the “Parties” or individually as a “Party”), whose signatures appear in this agreement.

The Parties agree as follows:

 

  1. DEFINITIONS. When used in the Agreement, the following capitalized terms, whether singular or plural, are defined as follows:

“Action”, “Lead”, or “Conversion” means the occurrence of any qualified action, event or occurrence, which triggers Advertiser’s obligation to pay NIKIA MEDIA, INC. a fee or commission as further described in the Insertion Order(s), Offer(s), and/or Campaign(s). Such events may include, but are not limited to, a click, lead, sale, registration, qualified call, call request, call transfer, form completion, inquiry, conversion, view, or other event specifically identified in the Insertion Order(s) that may pertain to a type of marketing campaign.

“Advertiser” means the Advertiser, and its members, managers, officers, directors, shareholders, employees, contractors, agents, and representatives, identified in this Agreement and Insertion Order(s) that seeks to engage in a Campaign and/or promote an Offer aimed at selling, marketing or promoting Advertiser’s products or services as more specifically described in the Insertion Order(s), and that agrees to pay NIKIA MEDIA, INC. a fee or commission for its digital advertising and affiliate marketing services.

“APP Install” means a mobile application install advertisement that offers a direct click to a mobile application store, such as Google Play, Apple, or iTunes).

“Call-Verified Leads” means a method of promotion or advertising where a prospective consumer has provided some or all of their information through a website, landing page, or application in response to an advertisement, and then the prospective consumer provides answers to qualifying questions over the telephone during a verification call made by the Advertiser.

Campaign” means the unique combination of the Advertiser, Campaign, and Offer aimed at selling, marketing or promoting an Advertiser’s products or services as more specifically described in the Insertion Order(s), and which serves as the basis to drive prospective consumers to an Advertiser’s website, products or services.

“Creative”, “Ad”, “Advertisement” or “Content” means the advertising and creative third-party content provided, created, or developed by Advertiser or Publisher, that is published or distributed on behalf of the Advertiser by NIKIA MEDIA, INC.’s Publisher.

Cost Per Action,” “Cost Per Lead,” “CPA” or “CPL” is a type of marketing campaign and payment model whereby the Advertiser is obligated to pay NIKIA MEDIA, INC. a Fee for each Action, as defined in the Insertion Order(s), which is delivered by NIKIA MEDIA, INC. and its Publishers from a Creative or Advertisement through the Services. Such Fee is calculated by multiplying the number of Actions tracked by NIKIA MEDIA, INC., by the applicable CPA or CPL Fee rate set forth in the Insertion Order(s).

“Display” means a type of advertising that is located on websites, and may consist of wide range of formats and contain text, images, flash, video, and audio.

“DPPS” means a method of promotion or advertising by direct print publication services.

“DRTV” means “Direct Response Television,” such as infomercials or short-form commercials and advertisements on television that allow consumers to directly respond to an advertiser.

“E-Mail” means electronic mail, and serves as a method of promotion or advertising that is transmitted via electronic mail, whether in HTML or text format, that will direct recipients to an Advertiser’s landing page or website.

“Fee” means the amount due to NIKIA MEDIA, INC. from the Advertiser as a commission for NIKIA MEDIA, INC.’s Services, pursuant to the specific payment terms set forth in these Terms and in the Insertion Order(s), which may be generated by a particular Action in accordance with this Agreement.

“Geo” means the scope and geographical area that applies to a PPC marketing campaign, as set forth in the Insertion Order(s).

“Incentivized” means a form of advertising where an online customer or user is offered something of value, such as reward, cash, gift card, online or virtual currency, or tangible gift, in exchange for performing an action, or registering or purchasing a product or service.

“Host & Post” or “White Labeling” means or method of promotion or advertising that involves a Publisher hosting the Advertiser’s forms on the Publisher’s own website, which then posts or sends data to the Advertiser. Host and post method allows Publishers to collect leads on the Publisher’s own website or landing page and pass the consumers to the Advertiser.

“Insertion Order(s)” or “IO” means the written Advertiser Insertion Order(s) form that has been submitted by Advertiser to NIKIA MEDIA, INC. that is incorporated into and governed by these Terms. The Parties may enter into multiple Insertion Order(s), and all existing and future Insertion Order(s) shall be governed by these Terms.

“IVR” means an interactive voice response system and technology that allows a computer to digitally interact with an individual through the use of voice and DTMF tones inputted via a keypad, such as a telephone, which is described in the Insertion Order(s).

Laws” means all applicable laws, statutes, ordinances, regulations, and legal guidelines in every jurisdiction in which Advertiser conducts business, including, without limitation, those related to the unfair, fraudulent, false or deceptive advertising, cybersquatting, infringement of intellectual property, privacy, and publicity rights, the Federal Trade Commission Act ("FTC Act"), Federal Trade Commission ("FTC") regulations and guidelines implementing the FTC Act, all state and local counterparts to the FTC Act and associated regulations in every jurisdiction in which Advertiser conducts business, Chapter 501, Florida Statutes (Florida’s Deceptive and Unfair Trade Practices Act), the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the FTC's Telemarketing Sales Rule, the Federal Reserve Board's Regulation E, Federal Communications Commission regulations and guidelines, including Mobile Marketing Association guidelines, and FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, all as amended from time to time.

“Live Transfer” means a method of promotion or advertising where a Publisher or call-center takes telephone calls from a consumer or lead, and then transfers the consumer or lead directly to the Advertiser after verifying the consumer’s or lead’s information in accordance with the terms of the Insertion Order(s).

“Mobile” means a method of promotion or advertising offer to be displayed on mobile communication devices.

“Offer” means the particular advertising offer, website, or landing page for the Advertiser’s products or services associated with a Campaign, which is described in the Insertion Order(s).

Pay Per Call” or “PPC” is a type of marketing campaign and payment model whereby the Advertiser is obligated to pay NIKIA MEDIA, INC. a Fee for each qualified call, as further defined in the Insertion Order(s), which is delivered by NIKIA MEDIA, INC. and its Publishers from a Creative or Advertisement through the Services. Such Fee is calculated by multiplying the number of qualified calls tracked by NIKIA MEDIA, INC., by the applicable PPC Fee rate set forth in the Insertion Order(s).

“Network” means NIKIA MEDIA, INC.’s private affiliate network of relationships and exclusive partnerships with Publishers, together with the Campaign(s) and Offer(s), that allow NIKIA MEDIA, INC. to carry out the Services, as well as all associated Network Site(s), systems, platforms, and content, including, without limitation, all text, information, images, applications, templates software and other information, services, and materials.

"Network Site(s)" means the specific location of the website, platform and systems that host the Network operated by NIKIA MEDIA, INC..

“Publisher” or Affiliate” means each individual, company, or other entity that serves as an advertising publisher, affiliate, or partner with NIKIA MEDIA, INC., maintains a proprietary relationship with NIKIA MEDIA, INC., and owns advertising space, links, newsletters, websites, email lists, customer leads, or other media used for the purpose advertising or marketing campaigns and offers for NIKIA MEDIA, INC.’s Advertisers.

“Radio” means a method of promotion or advertising to be distributed or played on radio channels/stations, which typically occurs with PPC advertising.

“Reg-Path” means a method of promotion or advertising where an advertisement or creative is distributed through a registration form or registration process.

“Remarketing” or “Retargeting” means a method of promotion or advertising that involves serving advertisements to prospective consumers or visitors of a website, application or landing page,

after visiting a website, application or landing page.

“Search” means a method of promotion or advertising that seeks to promote a website or landing page by increasing visibility in search engine results, such as those in Google or Yahoo, and may include search engine optimization, paid placement, and paid inclusion.

“SEO” means “search engine optimization,” a method of improving a website to improve rankings on search engines through organic, crawler-based listings. The SEO process may involve using targeted and relevant keywords and phrases that will drive traffic or online users to the website or landing page.

“Services” means the services to be provided by NIKIA MEDIA, INC. and its Publishers to Advertiser, which consists of providing affiliate marketing and lead generation services for the Campaign(s) in accordance with the terms of the Agreement, through the publication and distribution of Creatives on the Network and Publisher’s Websites, Publisher’s E-mails, or other approved marketing channels.

“Social” or “Social Media” means a method of promotion or advertising where an advertisement or display banner is published on a social media website or application, such as Facebook.

“Telemarketing” means a method of promotion or advertising by marketing products or services by means of telephone calls to potential customers.

  1. PAYMENT, CLAIMS OR DISPUTES, AND REFUNDS.
  2. Calculation of Fees. Advertiser shall pay NIKIA MEDIA, INC. for the Services in accordance with the designated Campaign type, e.g. PPC or CPA, and associated Fee listed in the Insertion Order(s) for each applicable Action generated by NIKIA MEDIA, INC. and/or NIKIA MEDIA, INC.’s Publishers over the course of the Campaign. NIKIA MEDIA, INC. shall track all applicable Actions for Advertiser’s Campaign, and Advertiser shall pay for all Actions tracked by NIKIA MEDIA, INC. Campaign statistics and data compiled by NIKIA MEDIA, INC. including, but not limited to, data, numbers, and calculations regarding Actions (collectively “Campaign Data”), will be tracked and calculated by NIKIA MEDIA, INC. through the use of industry-standard tracking technology or other agreed upon tracking method of tracking and shall be final and binding on Advertiser. Advertiser shall not modify or otherwise interfere with NIKIA MEDIA, INC.’s tracking methods in any way. Additionally, Advertiser shall maintain all records and track all Actions for Advertiser’s Campaign, which, upon request by NIKIA MEDIA, INC., shall be provided to NIKIA MEDIA, INC. to verify the total number of Actions applicable to the Campaign. In that case, Advertiser shall be responsible for the greater of the Actions tracked by NIKIA MEDIA, INC. and Advertiser. Any questions, objections, or complaints regarding the Campaign Data must be submitted by Advertiser in writing within fourteen (14) days of initial appearance in the tracking system or other tracking method; otherwise the Campaign Data will be deemed to be accurate and approved by Advertiser, which shall be used to determine the Fee due from Advertiser.
  3. Cap. If expressly set forth in the Insertion Order(s), NIKIA MEDIA, INC. may place a cap or limit on the amount of Actions or other Services provided to Advertiser by NIKIA MEDIA, INC. (the “Cap”). The amount of such Cap shall be expressly set forth in the Insertion Order(s), and may be requested by the Advertiser or set by NIKIA MEDIA, INC., in NIKIA MEDIA, INC.’s sole and absolute discretion. If Advertiser wishes to modify or lift the agreed upon Cap after the execution of the Insertion Order(s), Advertiser shall notify NIKIA MEDIA, INC. of its desire to lift or modify such Cap in writing, and the Parties shall execute a new or amended Insertion Order(s) specifying the new Cap in order for the Cap to become effective on the Campaign. If no Cap is set forth in the Insertion Order(s), then there shall be no limit on the Services, including, but not limited to, the number of Actions and associated Fees due to NIKIA MEDIA, INC..
  4. Budget. If expressly set forth in the Insertion Order(s), Advertiser shall pay all Fees for the Services in advance and in full (the “Budget”). The amount of the Budget shall be listed in the Insertion Order(s), and Advertiser shall pay NIKIA MEDIA, INC. the Budget immediately upon Advertiser’s execution of the Insertion Order(s).
  5. Payment Terms. Advertiser is responsible for all Fees due to NIKIA MEDIA, INC. and Advertiser authorizes NIKIA MEDIA, INC. to deduct such amounts from any pre-funded Budget, advance payment or deposit if applicable. Should the Fees generated by Advertiser’s Campaign pursuant to Section 3(a) of these Terms exceed the applicable pre-funded Budget, advance payment or deposit, NIKIA MEDIA, INC. shall issue invoices to Advertiser. Advertiser shall pay all invoiced amounts on or before the due date listed in each of NIKIA MEDIA, INC.’s invoices. Advertiser shall timely submit payment for all Fees due to NIKIA MEDIA, INC. for the Services in accordance with the Insertion Order(s), the due dates on all NIKIA MEDIA, INC. invoices, and these Terms. Advertiser shall make all payments hereunder by cash, cash equivalents, credit card, wire transfer, check, ACH Debit, or by any other payment method agreed to by the Parties in writing, and in US dollars. Advertiser shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Advertiser shall reimburse NIKIA MEDIA, INC. for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys' fees. In addition to all other remedies available under the Agreement or at law (which NIKIA MEDIA, INC. does not waive by the exercise of any rights hereunder), NIKIA MEDIA, INC. shall be entitled to suspend or terminate the Campaign and the performance of any Services if Advertiser fails to pay any amounts when due hereunder. Advertiser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with NIKIA MEDIA, INC., whether relating to NIKIA MEDIA, INC.'s breach, nonperformance, or otherwise.
  6. Automatic Recurring Payment. At any time prior to or during a Campaign, NIKIA MEDIA, INC. may require that Advertiser, and in such case Advertiser agrees to, complete an Authorization form (“Authorization”) expressly authorizing NIKIA MEDIA, INC. to the process automatic, recurring, and instant withdrawals of funds from Advertiser’s designated financial or credit account to satisfy any and all ongoing prepayment and/or payment obligations of Advertiser to NIKIA MEDIA, INC. under these Terms and/or any Insertion Order(s). By completing the Authorization, Advertiser authorizes NIKIA MEDIA, INC. to automatically deduct such payments from a bank account (ACH), credit card, or other financial or credit account, which may include a processing fee up to four (4) percent, and Advertiser hereby provides NIKIA MEDIA, INC. express permission to make use of the form of payment elected in the Authorization. In the event that automatic billing is declined, expired, or returned, NIKIA MEDIA, INC. may automatically process any previously used automatic billing or account on file that was successful. If any payment is declined, charged back, or fails for any other reason, Advertiser shall reimburse NIKIA MEDIA, INC. for all charges incurred by NIKIA MEDIA, INC. as the result of any failed payment, in addition to satisfying Advertiser’s payment obligations for the Services. NIKIA MEDIA, INC. may suspend its performance of all Services until these charges are reimbursed. Advertiser agrees that Advertiser shall indemnify, defend and hold NIKIA MEDIA, INC. harmless for any error by Advertiser, NIKIA MEDIA, INC. or any financial institution with respect to any such deductions or charges. NIKIA MEDIA, INC. reserves the right to reject or terminate Advertiser’s participation in the Automatic Recurring Payment at all times in NIKIA MEDIA, INC.’s sole discretion.
  7. Billing Information. Advertiser agrees to provide NIKIA MEDIA, INC. with accurate billing and contact information, and Advertiser agrees to update this information within fifteen (15) days of any change to it. NIKIA MEDIA, INC. shall not be liable to Advertiser or to any third party for any claim resulting from Advertiser’s neglect or failure to provide accurate billing and information as requested by NIKIA MEDIA, INC. or required under these Terms.
  8. Claims or Disputes. Advertiser shall timely submit in writing any claims or disputes it may have with respect to the Services or any charge to Advertiser’s account, to NIKIA MEDIA, INC. within seven (7) days of such claim, dispute, charge, or invoice; otherwise Advertiser shall have forever waived any such claim or dispute, and/or such charge or invoice will be final and not subject to dispute.
  9. Refunds. Advertiser acknowledges that Advertiser’s obligations to pay NIKIA MEDIA, INC. for the Services are not contingent upon the overall success of the Advertiser’s Campaign. All funds paid or due to NIKIA MEDIA, INC. by Advertiser for the Services are nonrefundable.
  10. Credit Approval. NIKIA MEDIA, INC. may require a Credit check from Advertiser at NIKIA MEDIA, INC.’s sole and absolute discretion. Advertiser hereby consents to all such credit checks by NIKIA MEDIA, INC., and Advertiser shall provide NIKIA MEDIA, INC. with all information, and take all further actions reasonably required by NIKIA MEDIA, INC. in order to carry out all credit checks, including but not limited to completing NIKIA MEDIA, INC.’s standard credit check form. NIKIA MEDIA, INC. reserves the right to suspend and/or cancel the Services, and/or terminate the Agreement immediately, without further notice to Advertiser, upon Advertiser’s refusal to abide by the terms of this Section 3(f).
  11. ADVERTISER’S RESPONSIBILITIES, REPRESENTATIONS, WARRANTIES, AND COVENANTS.
  12. Creatives. Advertiser and/or Publisher shall at all times create, develop, and be solely responsible for, all Creatives for an Offer or Campaign. Under no circumstances shall NIKIA MEDIA, INC. be responsible for providing, developing, creating, or determining the accuracy, validity, appropriateness, or legality of Advertiser’s or Publisher’s Creatives, as well as Advertiser’s products or services that are being marketed through the Services. All Creatives shall not violate any rights of any third parties with respect to the Creatives. Creatives shall not include any information or content that is unlawful, unfair, deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with all applicable Laws. NIKIA MEDIA, INC. shall not have any liability for claims arising from any information or content created by third parties, including the Creatives created, developed, or used by Publisher and Advertiser. NIKIA MEDIA, INC. does not warrant the validity, legality, or accuracy of such Creatives, or exercise any editorial control over such Creatives, nor does NIKIA MEDIA, INC. assume any legal obligation for editorial control of the Publisher’s and Advertiser’s Creatives, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such Creatives.
  13. Compliance. Advertiser represents, warrants, and promises that all of Advertiser’s own products and services, Creatives, Offer, and Campaign(s) shall at all times comply with all Laws. Additionally, Advertiser shall not use any third party’s intellectual property, copyrights, trademarks, trade names, service marks, or brand names, without the express written consent of NIKIA MEDIA, INC. and the third party owner. Advertiser acknowledges and agrees that NIKIA MEDIA, INC. shall not have the ability to control, oversee, supervise, monitor, or manage Advertiser’s products or services that are the subject of the Campaign, including, without limitation, the creation, development, performance, or distribution of the Offer(s), Campaign(s), Creative(s). NIKIA MEDIA, INC. shall not be required to verify or confirm the accuracy or legality of Advertiser’s actions or inactions with respect to the Services being provided, and as a result, Advertiser shall rely solely upon its own independent legal counsel, experts, and compliance consultants to ensure Advertiser strictly complies with all applicable Laws at all times. Therefore, Advertiser agrees that it shall implement all necessary and adequate compliance controls and measures to ensure it complies with these Terms, and all Laws, prior to creating, developing, or publishing Creatives, prior engaging NIKIA MEDIA, INC.’s Services, and prior to marketing it products and services through NIKIA MEDIA, INC.’s Network. NIKIA MEDIA, INC. is relying on Advertiser’s material representations, warranties, and promises contained in these Terms, and Advertiser agrees that NIKIA MEDIA, INC. shall not be liable, and

Advertiser shall indemnify, defend and hold NIKIA MEDIA, INC. harmless, for any violation of these Terms or Laws in any way related to the Services, Creatives, and Campaign(s).

  1. Authority. Advertiser represents and warrants that Advertiser is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of the Agreement; Advertiser has the full right, power and authority to enter into the Agreement and to perform its obligations hereunder; Advertiser has taken all necessary corporate action to authorize the execution of the Agreement by its representative whose signature is set forth at the end hereof and who is authorized to bind Advertiser to all terms of the Agreement; and when executed and delivered by Advertiser and/or Advertiser’s representative, these Terms will constitute the legal, valid and binding obligation of Advertiser, enforceable against Advertiser in accordance with its terms.
  2. FRAUD, CLAIMS AND DISPUTES. Advertiser acknowledges that there is a potential for fraud by third parties, which is outside the control of NIKIA MEDIA, INC., and that Advertiser shall timely and immediately report any instances of fraud. As a result, Advertiser agrees that NIKIA MEDIA, INC. shall not be liable for any and all instances of fraud by third parties, such as end users or consumers, and Advertiser agrees to pay NIKIA MEDIA, INC. in full for the Services performed under the Agreement, notwithstanding any alleged, potential or actual fraud committed by any third parties. Advertiser further understands that NIKIA MEDIA, INC. implements policies and procedures to reduce and combat against fraud, and that should NIKIA MEDIA, INC. discover any fraud, it reserves the right to immediately terminate the Services and the Agreement, if necessary, in addition to pursuing any additional legal remedies. Although NIKIA MEDIA, INC. implements policies and procedures to reduce and combat against fraud; without sufficient proof of fraud as determined by NIKIA MEDIA, INC., Advertiser shall remain obligated to pay NIKIA MEDIA, INC. for the Services performed under the Agreement.
  3. LICENSE. NIKIA MEDIA, INC. grants Advertiser a revocable, non-transferable, non-sublicensable, non- exclusive limited license to participate in the Network and use the Network Site(s) (including any Creatives or other materials posted thereon) and any data, reports, information or analyses arising out of such use (the "Site Data") solely for the purpose of utilizing the Services hereunder and subject to these Terms and the applicable Offer or Campaign. Advertiser acknowledges and agrees that Advertiser does not have, nor will it claim any right, title or interest in the Network Site(s) software, applications, data, methods of doing business or any elements thereof, or any content or information provided on the Network Site(s). Advertiser may only access the Network Site(s) via web browser, e-mail or in a manner approved by NIKIA MEDIA, INC. Advertiser shall not alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Network Site(s), and its tags, source codes, links, pixels, modules or other data provided by or obtained from NIKIA MEDIA, INC. that allows NIKIA MEDIA, INC. to measure ad performance, track data or Actions, and provide its Services. In addition, Advertiser acknowledges that all Confidential Information, as defined herein, non-public information, data, and reports received from NIKIA MEDIA, INC. hereunder or as part of the Services hereunder is proprietary to and owned by NIKIA MEDIA, INC. If instructed to do so by NIKIA MEDIA, INC. and/or if Advertiser shall be terminated by NIKIA MEDIA, INC., Advertiser shall immediately destroy and discontinue the use of any and all NIKIA MEDIA, INC. data, including Network Site(s), all Confidential Information, and any other material owned by NIKIA MEDIA, INC. or its clients and Publishers.
  4. TERMINATION. Either Party may terminate the Agreement, and/or any particular Insertion Order(s), at any time, by delivering to the other Party no less than seven (7) days advance written notice of the terminating Party’s intention to terminate. No termination shall be effective, and the Agreement shall remain in full force and effect until seven (7) days have elapsed from the time the other Party receives the terminating Party’s notice of termination. Advertiser shall continue to be obligated to pay for all Actions and associated Fees generated by the Campaign during the seven (7) day period until termination becomes effective. Upon termination or expiration of the Agreement, for any reason, Advertiser shall:
  5. pay NIKIA MEDIA, INC. for all outstanding amounts then due and owing in accordance with the terms of the Agreement; and
  6. Continue to perform its obligations under the provisions of the Agreement, which are to expressly survive, or that may reasonably be expected to survive, termination or expiration of the Agreement.

Advertiser understands and agrees that NIKIA MEDIA, INC. will permit the Advertiser to utilize the Services and participate in the Network, subject to Advertiser’s compliance with these Terms, the Insertion Order(s), Offer(s), Campaign(s), Laws, and any policies established by NIKIA MEDIA, INC. from time to time, which are hereby expressly incorporated by reference in these Terms. Should Advertiser fail to comply with these Terms, the Insertion Order(s), Offer(s), Campaign(s), Laws, and any of NIKIA MEDIA, INC.’s policies, NIKIA MEDIA, INC. may immediately suspend or terminate the Services and/or Advertiser’s participation in the Network without notice, effective immediately, which includes, but is not limited to, suspending or terminating a Campaign, and/or removing any of Advertiser’s Creatives. In the event of suspension or termination of Advertiser, Advertiser shall pay NIKIA MEDIA, INC. for all outstanding amounts then due and owing in accordance with the terms of the Agreement, and NIKIA MEDIA, INC. will have no further obligation to Advertiser.

  1. NON-DISCLOSURE AND CONFIDENTIALITY.
  2. Non-Disclosure. It is anticipated that NIKIA MEDIA, INC. may disclose or deliver to Advertiser certain trade secrets, and/or Confidential Information, as defined herein, belonging to NIKIA MEDIA, INC. and/or its clients and Affiliates. “Confidential Information” includes, but is not limited to, all proprietary or business-sensitive information, whether oral, written, graphic, machine-readable or tangible form, and whether or not registered, and including all notes, plans, records, documents, computer programs and software and other evidence thereof, including without limitation all: methods, know-how, strategies, patents, patent applications, copyrights, trademarks, trade names, service marks, customer or client lists, pricing policies, operational methods, marketing plans or strategies, procurement and sales activities or methods, promotion and pricing techniques, credit and financial data, and other information, data and documents now existing or to be created by NIKIA MEDIA, INC. and/or its Affiliates, regardless of whether any of such information, data or documents qualify as a “trade secret” under applicable federal or state law. NIKIA MEDIA, INC. wishes to ensure that the information so exchanged is treated by Advertiser in the strictest confidence, and Advertiser agrees to treat all information Advertiser receives from NIKIA MEDIA, INC. in the strictest confidence. Advertiser shall hold the Confidential Information in the strictest confidence and shall not disclose the Confidential Information to any third party without NIKIA MEDIA, INC.’s written consent. Advertiser agrees not to disclose any Confidential Information to any unauthorized person and promise not to use any Confidential Information for any purpose other than in connection with the subject matter contained in the Agreement. Upon termination or expiration of the Agreement for any reason, with or without cause, Advertiser shall immediately surrender and turn over to NIKIA MEDIA, INC. all proprietary and Confidential Information in Advertiser’s possession.
  3. Procedure. If Advertiser becomes legally compelled to disclose any Confidential Information, Advertiser shall provide to NIKIA MEDIA, INC.: (1) prompt written notice, no more than five (5) days from its receipt of any request, of such request for disclosure so that NIKIA MEDIA, INC. may seek, at its sole cost and expense, a protective order or other remedy prior to such disclosure; and (2) reasonable cooperation and assistance, at NIKIA MEDIA, INC.’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure, prior to such disclosure. If, after providing such notice and assistance as required herein, Advertiser remains required by law to disclose any Confidential Information, Advertiser shall disclose no more than that portion of the Confidential Information which, on the advice of Advertiser’s legal counsel, Advertiser is legally required to disclose, and, upon NIKIA MEDIA, INC.'s request, Advertiser shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information shall remain confidential and protected from disclosure.
  4. Injunctive Relief. The Parties recognize that each Party has legitimate business interests to protect and as a consequence, each Party, and its principals, agree to the restrictions contained in the Agreement because they further each Party’s legitimate business interests. The Parties acknowledge and agree that damages in the event of a breach or threatened breach of the covenants contained above in the Agreement will be difficult to determine and the non-breaching Party will not have an adequate remedy at law, and therefore the Parties agree that they may, in addition to seeking actual damages, seek specific enforcement of the covenants set forth in the Agreement in any court of competent jurisdiction, including, without limitation, by the issuance of a temporary or permanent injunction, without notice and without the necessity of a bond. The Parties agree that the covenants in the Agreement are reasonable, including without limitation the period of time, scope, and geographical area. However, should any court determine that any provision is unreasonable, the Parties agree that the covenants should be interpreted and enforced to the maximum extent such court deems reasonable under applicable law. The Parties’ obligations contained in this Section 7 shall survive the termination of the Agreement for any reason.
  5. NON-CIRCUMVENT. Advertiser recognizes that NIKIA MEDIA, INC. has proprietary relationships with its clients, customers, advertisers, and Publishers (“Clients”). Advertiser agrees not to circumvent NIKIA MEDIA, INC.'s relationship with NIKIA MEDIA, INC.’s clients, or to otherwise solicit, purchase, contract for or obtain Services similar to the Services performed by NIKIA MEDIA, INC. hereunder from any of NIKIA MEDIA, INC.’s Clients that are known, or should reasonably be known, by Advertiser to have such a relationship with NIKIA MEDIA, INC.. Notwithstanding the foregoing, to the extent that Advertiser can show that any such Publishers already provided such Services to Advertiser prior to the date of the first Insertion Order(s) executed by the Parties, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this Section 9 will not be adequate and that NIKIA MEDIA, INC. shall be entitled to injunctive relief (including temporary and preliminary relief) without the requirement to post a bond, in addition to any other available legal remedies or damages.
  6. INDEMNIFICATION. Advertiser agrees to defend, indemnify and hold harmless NIKIA MEDIA, INC. and its affiliates and their respective members, managers, directors, officers, employees, and agents (collectively “Indemnitees”) from any and all actions, suits, claims, demands, investigations, obligations, debts, losses, damages, liabilities, penalties, injury, costs and expenses (including reasonable attorneys’ fees and amounts paid in settlement) (collectively “Indemnified Losses”) incurred or suffered by one or more of the Indemnitees by reason of, or arising out of any of the following: (a) Advertiser’s breach of or failure to to perform any of its respective covenants or obligations set out in this Agreement or applicable Insertion Order(s), (b) Advertiser’s Creatives, Ads, or Ad Content, (c) Advertiser’s negligence, acts, errors, or omissions, or (d) any products or services linked to Advertiser’s Creatives, Ads, or Ad Content. Advertiser agrees to defend and/or reimburse Indemnitees on demand for any Indemnified Losses suffered by Indemnitees. If any action is brought against Indemnitees with respect to any allegation for which indemnity or defense may apply hereunder, Indemnitees will notify Advertiser of any such claim of which it becomes aware and will (i) provide reasonable cooperation to Advertiser at Advertiser’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. Advertiser shall not acquiesce to any judgment or enter into any settlement that adversely affects Indemnitees’ rights or interests without the prior written consent of Indemnitees.
  7. DISCLAIMER OF WARRANTIES. NIKIA MEDIA, INC. PROVIDES ITS SERVICES AND THE SERVICES OF ITS PUBLISHERS AND PARTNERS, AS PERFORMED HEREUNDER, ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY OF THE SERVICES. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY OF NIKIA MEDIA, INC.’S SERVICES, NIKIA MEDIA, INC.’S SOLE OBLIGATION WILL BE TO RESTORE THE SERVICES AS SOON AS PRACTICABLE. NIKIA MEDIA, INC. DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
  8. LIMITATION OF LIABILITY. IN NO EVENT SHALL NIKIA MEDIA, INC. BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTION OF BUSINESS, LOSS OF USE, LOST BUSINESS, LOST PROFITS, LOSS OF INFORMATION OR DATA, OR THE LIKE (EVEN IF NIKIA MEDIA, INC. WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR INSERTION ORDER(S), OR ADVERTISER’S USE OF NIKIA MEDIA, INC.’S SERVICES OR NETWORK SITE(S). UNDER NO CIRCUMSTANCES SHALL NIKIA MEDIA, INC. BE LIABLE TO ADVERTISER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY NIKIA MEDIA, INC. FROM ADVERTISER UNDER THE AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT OF INJURY THAT GAVE RISE TO LIABILITY. NIKIA MEDIA, INC. SHALL NOT BE RESPONSIBLE FOR ANY CONDUCT, ACTION, INACTION, OR FRAUD OF THE ADVERTISER, PUBLISHER(S), SUB-PUBLISHER(S), ONLINE USERS, OR ANY THIRD PARTIES.
  9. Restrictive Covenants Independent. Each restrictive covenant set forth in this Agreement shall be construed as a covenant independent of any other covenant or provision of this Agreement between the Parties, and the existence of any claim or cause of action against NIKIA MEDIA, INC., whether predicated upon another covenant or provision of the Agreement or otherwise, shall not constitute a defense to the enforcement by NIKIA MEDIA, INC. of any other covenant or this Agreement.
  10. NOTICES. All notices shall be sent to the addresses submitted by Advertiser when enrolling, registering, or creating an account with NIKIA MEDIA, INC., or when using NIKIA MEDIA, INC.’s Network Site(s) or Services, by certified mail, facsimile, electronic mail (e-mail) or courier. NIKIA MEDIA, INC.’s Services are conducted and provided electronically. Therefore, Advertiser agrees that NIKIA MEDIA, INC. may communicate electronically with Advertiser with respect to any and all matters relating to the Services.
  11. SURVIVAL. Each provision of the Agreement reasonably intended by its terms to survive termination or expiration of the Agreement, including, but not limited to, Sections 2, 4, 5, 7, 8, 9, 15, and 16, shall so survive.
  12. ATTORNEYS' FEES. In the event of any dispute arising under this Agreement, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, whether incurred before suit, during suit, or at the appellate level, including all attorneys’ fees and costs incurred in litigating entitlement to attorneys’ fees and costs, as well as all attorneys’ fees and costs determining or quantifying the amount of recoverable attorneys’ fees and costs. The reasonable costs to which the prevailing party is entitled shall include all costs that are taxable under any applicable statute, rule, or guideline, as well as all non-taxable costs, including, but not limited to, costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable under any applicable statute, rule, or guideline.
  13. WAIVER OF JURY TRIAL. EACH PARTY TO THE AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THE AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE AGREEMENT, CAMPAIGN, OFFER, THE INSERTION ORDER(S), OR ANY OTHER AGREEMENT CONTEMPLATED AND EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF DEALING, COURSE OF CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
  14. MISCELLANEOUS. The Agreement will be governed and construed in accordance with the laws of the state of Florida without giving effect to conflict of laws principles, and all federal law. In the event of any dispute between the Parties arising from the Agreement, including the Insertion Order(s), Advertiser agrees to submit to exclusive jurisdiction and venue in the courts of Broward County, Florida. If any provision of the Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Advertiser may not assign the Agreement without the prior written consent of NIKIA MEDIA, INC. The Parties' rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and assigns. The Parties to the Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by the Agreement. The Agreement, including the Parties’ Insertion Order(s) between the Parties, sets forth the entire agreement of the Parties and supersedes any and all prior oral or written agreements or understandings between the Parties as to the subject matter hereof. Except as otherwise set forth herein, only a writing signed by both Parties may change the Agreement or any Insertion Order(s). In the event the terms of any Insertion Order(s) and these Terms conflict, the Insertion Order(s) will govern only with respect to the duration of the Services, Fees, invoicing and payment terms, otherwise, these Terms shall govern and control. NIKIA MEDIA, INC.’s failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The terms of the Agreement, together with any additional terms contained in any Insertion Order(s), comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

 

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