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CPA Storm, LLC’s Terms and Conditions for Advertising Sales
The following terms and conditions govern the placement and delivery of the advertising (“Ad”) as set forth in an Insertion Order (the “IO”) to which these terms and conditions are attached. In the event of a conflict between the IO and these terms and conditions, the IO shall take precedence. CPA Storm, LLC is referred to herein as “CPA Storm” The customer identified on the IO is referred to herein as the “Customer.”
1. Representations. Customer represents and warrants that: (1) it is the owner or is licensed to use the entire contents and subject matter contained in the Ad; (2) the Ad is free of any "worm", "virus" or other device that could impair or injure any person or entity; (3) the Ad does not violate any law or regulation governing false or deceptive advertising, sweepstakes, gambling, comparative advertising, or trade disparagement; (4) the Ad does not contain any misrepresentation, or content that is defamatory or violates any rights of privacy or publicity; (5) Customer is generally familiar with the nature of the Internet and will comply with all laws and regulations that may apply to display of the Ad on CPA Storm’s network of sites; and (6) the Ad does not and will not infringe any copyright, trademark, patent or other proprietary right.
2. Terms of Payment. Customer shall pay all amounts due hereunder on a monthly basis within the time period indicated in the IO, or if no time period is indicated in the IO, within fifteen (15) days after the end of each month. Customer shall calculate the amount due for each month based on its records of completed Actions, as discussed under Section 4 below, and shall make payment within the time period indicated above irrespective of whether or not CPA Storm has invoiced Customer for such amounts. CPA Storm is not obligated to issue invoices for amounts due hereunder, but may do so at its discretion. Customer shall pay to CPA Storm interest on any past due payments at the rate of 1.5% per month, or if less, the highest rate permitted under applicable law, and all costs of collection, including reasonable attorney's fees and expenses. The monthly amounts due hereunder and all Actions and other data upon which such amounts are based shall be final and binding on Customer for all purposes unless Customer objects in writing to the amounts, Actions or other data (collectively, the “Payment Information”) prior to the time payment is due. Customer waives and releases any right to contest or otherwise challenge the Payment Information if Customer fails to object in writing to any such items prior to the time payment is due. Customer shall also pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement, except for taxes on CPA Storm’s income.
3. Delivery of Ads. Customer will, at its sole cost and expense, create and deliver all content required for any Ad to CPA Storm (provided, however, that if any content is created by CPA Storm, Customer shall approve such content in writing before publication). If such content does not conform to CPA Storm’s technical specifications or does not arrive timely enough to deliver such Ad on the agreed display dates, then CPA Storm, in its sole discretion, may: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after (1) the non-conforming content is corrected, or (ii) the late-arriving content is received. CPA Storm may, in its sole discretion, reject or remove any Ad, for any reason, in which event CPA Storm will refund any amounts paid in advance for such Ad or a prorated portion of such fees if such Ad is removed after a period of display. Customer may not use a third party to serve or administer any Ad without CPA Storm’s prior written consent, which shall be given or withheld in CPA Storm’s sole discretion and may be subject to additional terms and conditions.
4. Actions; Audit Right. For purposes of this Agreement, “Action” means an act or event by a third party upon which a payment is based or determined, such CPA (cost per action) or CPM (cost per thousand), as set forth in the IO. Customer shall promptly provide CPA Storm with periodic written accountings of all Actions so that CPA Storm can timely verify the monthly amounts due hereunder. Customer shall be obligated to retain books and records pertaining to the Actions and other data necessary to compute the charges hereunder for at least one year after the conclusion of each Ad. CPA Storm shall have the right to audit such books and records. If the audit reveals an underpayment, Customer shall promptly pay to CPA Storm such underpayment along with past due interest charges from the time originally due until paid. If the amount of the underpayment is more than 5%, Customer shall also be obligated to pay to CPA Storm its reasonable audit costs.
5. Quality Control: CPA Storm reserves the right to refuse service to any new or existing Customer, in its sole discretion, with or without cause. CPA Storm reserves the right, in its sole discretion and without liability, to reject, omit or exclude any Ad or content thereof for any reason at any time, with or without notice to the Customer and regardless of whether such Ad was previously accepted or published. CPA Storm does not accept Ads from Customers that produce or provide adult content. Ads and content thereof (along with any linked URLs) shall not include nudity, partial nudity or adult language. CPA Storm does not accept Customers that engage in, promote or facilitate illegal activities. CPA Storm may in its sole discretion refuse or restrict use of any Ad that it deems inappropriate or requires special handling. This Agreement is cancelable by CPA Storm immediately if Customer fails to disclose, conceals or misrepresents itself in any way.
6. License. For the term of this Agreement, Customer hereby grants to CPA Storm and CPA Storm’s affiliates and partners a non-exclusive, royalty-free, worldwide license to (a) use, perform and display all Ads delivered hereunder in accordance with the terms of the IO, and (b) use all associated Customer intellectual property in connection therewith. Title to and ownership of all intellectual property rights of all Ads and associated Customer intellectual property shall remain with Customer or its third party licensors. In addition, Customer agrees that CPA Storm may, during the term of this Agreement and thereafter, include Customer’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on CPA Storm’s customer list and in its marketing materials and sales presentations.
7. DISCLAIMER OF WARRANTIES. CPA STORM PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES 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 AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, CPA STORM’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. CPA STORM 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. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL CPA STORM BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE OR STRICT LIABILITY OR OTHERWISE), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF CPA STORM WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL CPA STORM BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES FOR AN AMOUNT OF DAMAGES GREATER THAN $5,000. IN LIEU OF PAYING DAMAGES, CPA STORM SHALL BE GIVEN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED TO PROVIDE CUSTOMER WITH A SUBSTITUTE AD PLACEMENT.
9. Termination. In addition to any other remedies that may be available to it, CPA Storm may immediately terminate the IO in the event of any breach by Customer of the representations and warranties contained herein or nonperformance of any of its obligations hereunder. Either party may terminate any IO, for any or no reason on ten (10) days prior written notice. Sections 1, 4, 7, 8, 10, and 11, and any accrued but unpaid payment obligations, shall survive termination.
10. Indemnity. Customer agrees to indemnify, defend, and hold harmless CPA Storm for any claims, liabilities, costs and expenses (including reasonable attorney’s fees) incurred by CPA Storm as a result of the acts or omissions or breach of this Agreement by Customer. CPA Storm agrees to indemnify defend, and hold harmless Customer for any claims, liabilities, costs and expenses (including reasonable
attorney's fees) incurred by Customer as a result of acts of gross negligence or willful misconduct by CPA Storm. In the event either of these indemnities include claims against the employees, agents or affiliates of CPA Storm or Customer, those employees, agents, or affiliates shall be indemnified just as their principal would be.
11. Confidential Information. “Confidential Information” shall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. Neither Customer nor CPA Storm shall disclose or use the other party's Confidential Information for any purpose other than the purposes contemplated by this Agreement, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party's Confidential Information to the extent required by applicable law, but only after five (5) days prior written notification to the other party of such required disclosure. Upon termination, cancellation or expiration of this Agreement for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed. Customer's Confidential Information shall remain the property of Customer, and CPA Storm's Confidential Information shall remain the property of CPA Storm.
12. Other. This Agreement will be governed and construed in accordance with the laws of the State of Colorado without giving effect to conflict of laws principles. Customer and CPA Storm agree to submit to jurisdiction in Colorado and venue in the courts of Denver County, Colorado. If any provision of this 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. Customer may not assign this Agreement without the prior written consent of CPA Storm. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument. This Agreement may be executed and delivered by facsimile and the parties agree that such facsimile execution and delivery shall have the same force and effect as delivery of an original document with original signatures.
13. Other Agreements. This Agreement and any related IO 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. |
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