ADTECH Lite Ad Serving Agreement

THIS ADTECH LITE AD SERVING AGREEMENT (“AGREEMENT”) GOVERNS THE TERMS AND CONDITIONS UNDER WHICH YOU ("CUSTOMER" OR “YOU”) MAY USE AND ACCESS THE PLATFORM OFFERED BY ADTECH US, INC. (“ADTECH”) FOR THE DELIVERY OF ADVERTISING MATERIALS TO WEBSITES AND ONLINE MEDIA (EXCLUDING ANY SERVICES PROVIDED TO YOU BY ADTECH UNDER A SEPARATE AGREEMENT). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE PLATFORM. BY CLICKING THE "SUBMIT" BOX AND/OR OTHERWISE INDICATING ELECTRONIC ACCEPTANCE OF THIS AGREEMENT, YOU AGREE TO BECOME BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU WILL NOT HAVE ANY RIGHT TO USE THE SERVICES OFFERED BY ADTECH. ADTECH'S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY ADTECH, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. Background and Eligibility.
a. Background. ADTECH is an application service provider that targets and delivers ad campaigns over the Internet to ad placements on media (primarily web sites), then measures the performance of these ad campaigns. ADTECH’s ad delivery service is powered by its proprietary ad serving technology (such service and technology, the “Ad Delivery Service”). To receive the Ad Delivery Service, Customer will need to label its ad placements by adding special programming code(s) (an “Ad Tag”) to each web page of a web site or other online media (“Target Site”) on which an ad placement is intended to appear. Through the i-Center, the Ad Delivery Service’s web-based user interface (“User Interface”), Customer will be able to traffic campaign specifications and upload advertising materials (“Ads”) for delivery by the Ad Delivery Service in response to Ad Requests. An “Ad Request” means an automated request made by an end user’s browser to the Ad Delivery Service for Ads, regardless of where the Ads are stored; also colloquially referred to as an “ad impression”. Customer will also be able to use the User Interface to access reports.
b. Eligibility; Payment. Customer is eligible to make use of the Ad Delivery Service pursuant to this Agreement at no charge so long as the number of Ad Requests submitted by Customer’s ad placements to the Ad Delivery Service does not exceed fifty million (50,000,000) per month (the “Ad Request Threshold”). In the event that the Ad Request Threshold is exceeded in a given calendar month, Customer shall pay ADTECH with respect to all Ad Requests in excess of the Ad Request Threshold at the rate of $0.04 CPM, during the sixty (60) day period immediately following the date on which the Ad Request Threshold was reached (such sixty (60) day period is referred to as the “Grace Period”). For purposes hereof, “CPM” shall mean cost per thousand Ad Requests. During the Grace Period, Customer will have the opportunity to enter into a new standard ad serving agreement with ADTECH for the purpose of enabling Customer to receive an upgraded version of the Ad Delivery Service with respect to which there are applicable fees and charges determined by ADTECH’s then-current rates (a “Standard Ad Serving Agreement”). This Agreement shall automatically terminate immediately after the last day of such Grace Period, and Customer shall thereafter have no right to make any further use of the Ad Delivery Service unless and until such time as Customer enters into a Standard Ad Serving Agreement with ADTECH.
c. Technical Support. Customer may elect to make use of ADTECH’s technical support hotline during normal business hours. Technical support is subject to a fee  $35 per 15 minutes, and is billed in rounded 15-minute increments.
d. Counting: Billing. ADTECH shall have the sole responsibility for counting and measuring the number of Ad Requests submitted by Customer’s ad placements to the Ad Delivery Service, for determining whether the Ad Request Threshold has been exceeded, and for calculating all fees and charges under this Agreement. ADTECH will charge Customer’s credit card for the fees due with respect to the applicable charges (consisting of fees due for Ad Requests and the use of optional features and services such as technical support).  Customer is responsible for paying all taxes applicable to receipt of the Ad Delivery Service, other than income taxes imposed on ADTECH related to the compensation it receives under this Agreement.  Payments hereunder shall be made without deduction for withholding taxes.  Late payments will be subject to late fees at the rate of 1.5% per month, or if lower, the maximum rate allowed by law. In no event shall Customer’s obligation to pay fees when due be subject to set off. If Customer fails to pay fees charged by ADTECH by the payment due date, ADTECH shall have the option, without prior notice or warning, (i) to terminate this Agreement, or (ii) to deactivate Customer’s access to the User Interface, or (iii) to suspend ADTECH’s performance of the Ad Delivery Service. Customer shall be solely responsible for all of the costs incurred by ADTECH in collecting the undisputed past due fees (e.g., attorney’s fees and collection costs).
2. ADTECH Services. ADTECH shall provide Customer with access to the Ad Delivery Service during the Term of this Agreement, including password-protected access to the User Interface through which Customer will be able to view reports on the performance of the Ads delivered under this Agreement. Customer shall be able to make use of online streaming video-based training and other technical support resources made available by ADTECH through the ADTECH Lite support page. In the event that Customer sends Ad Requests to ADTECH with respect to unsold remnant inventory on the Target Sites (“Remnant Ad Requests”), ADTECH may in its discretion redirect such Ad Requests to its affiliate, Advertising.com LLC (“Advertising.com”), who may fill such Ad Requests with advertising creatives obtained by Advertising.com through its third party advertising network. Customer agrees to the Advertising.com Publisher Terms and Conditions with respect to Remnant Ad Requests.
3. Certain Customer Obligations.
a. Use of the Service and User Interface. Customer shall access and use the Ad Delivery Service and the User Interface strictly in accordance with the guidelines provided by ADTECH in its support documentation accessible via the User Interface.
b. Password; Security. Customer acknowledges that access to the User Interface is through a unique user name and password (“Login”).  One “Login” profile is designated per Customer to have access. Customer shall employ best practices to safeguard its Logins from loss, theft or misuse.
c. Relations with Advertisers and Publishers. Customer is solely responsible for managing the relationships with Customer’s advertisers and/or web site publishers.
4. Confidentiality. “Confidential Information” is information disclosed or made available by ADTECH to Customer that is not generally known to the public or that should reasonably be understood to be confidential or proprietary under the circumstances disclosed. The terms of this Agreement, information about the operation and performance of the Ad Delivery Service, and information regarding or derived from the performance of the Ads and Ad Tags are Confidential Information of ADTECH. Except as expressly permitted by this Agreement, Customer agrees not to disclose the Confidential Information to any third parties. Customer shall not use the Confidential Information for a purpose not contemplated by this Agreement. Customer may disclose Confidential Information to its directors, officers, employees and legal advisors (collectively, “Representatives”), but only to the extent necessary to perform its obligations or exercise its rights under this Agreement, provided that each such Representative has been informed of Customer’s obligations hereunder and who, by reason of a written agreement, conditions of employment or operation of law, is obligated to maintain and hold in confidence all Confidential Information in the same manner and to the same extent required of Customer hereunder. Customer shall be fully responsible for any breach of such obligations by any of its Representatives. “Confidential Information” excludes information that (A) was already in Customer’s possession prior to the time that Customer learned of such information in connection with this Agreement; (B) is disclosed to Customer by a third party with the right to make such disclosure, (C) is or becomes generally available to the public without breach of this Agreement, or (D) can be shown to have been independently developed by Customer without use of or reference to the Confidential Information. In addition, Customer will be allowed to disclose Confidential Information to the extent (x) approved in writing by ADTECH, and (y) required by law or by the court or administrative order, so long as Customer provides ADTECH with prompt and sufficient notice to permit ADTECH to seek a protective order, reasonably cooperates with ADTECH in ADTECH’s attempts to restrict disclosure, and discloses only that portion of the Confidential Information that its counsel advises is legally required to be disclosed.
5. Data. Customer shall have the right to use all data collected by the Ad Delivery Service on Customer’s behalf in connection with this Agreement. ADTECH may use and disclose data collected derived from Customer’s use of the Ad Delivery Service: (i) as described in ADTECH’s privacy policy; and (ii) to operate, manage, maintain and improve the Ad Delivery Service and ADTECH’s business. ADTECH has the right to monitor Customer’s use of the Ad Delivery Service for compliance with this Agreement, may investigate Customer’s activities related thereto, and may provide information about Customer’s use of the Ad Delivery Service to law enforcement authorities if it determines such provision to be necessary to comply with a court order, subpoena or similar order, or to prevent or mitigate harm to Internet users, ADTECH or its affiliates or customers.
6. Privacy.
a. In no event shall the information communicated by the Target Sites to the Ad Delivery Service, whether through the Ad Tags or otherwise, ever contain information that ADTECH could use or recognize as personally-identifiable about any User or other individual.
b. Customer agrees that it will require the Target Sites to feature an easy-to-understand privacy policy with a link from the Target Site’s home page that contains the word “Privacy”, which shall clearly disclose that: (i) Customer works with a third party (i.e. ADTECH) for ad delivery, (ii) the non-personally-identifiable information collected about a consumer’s visits to this and other web sites may be used in order to provide advertisements about goods and services of interest to the consumer, and (iii) consumer has the option not to participate (included with a link to ADTECH’s cookie opt-out page).
7. Proprietary Rights. ADTECH retains all rights in and to the Ad Delivery Service and User Interface, including any enhancements made by ADTECH to the Ad Delivery Service and User Interface. Customer has no rights in or to the Ad Delivery Service or User Interface beyond the limited rights of access and use contemplated by this Agreement. As between ADTECH and Customer, Customer retains all rights in and to Ads that are uploaded into and delivered by the Ad Delivery Service, including any modifications, if any, made by ADTECH on Customer’s behalf. ADTECH has no rights in or to the Ads other than the limited right to store, deliver, and, if requested by Customer, modify, the Ads as contemplated by this Agreement.
8. Term; Termination; Objectionable Content. This Agreement shall commence on the date electronically accepted by Customer or otherwise executed by Customer, and shall remain in effect until terminated as set forth herein. This Agreement shall automatically terminate immediately after the last day of the Grace Period as set forth in Section 1(b). In addition, either party may terminate this Agreement immediately for any or no reason by providing written notice to the other party. ADTECH may cease to provide the Ad Delivery Service to customers generally, and/or may cease to make the Ad Delivery Service available to Customer, at any time. Upon termination of this Agreement, Customer must immediately remove the Ad Tags from the Target Sites. In the event that Customer does not remove the Ad Tags from the Target Sites upon termination of this Agreement, Customer shall pay ADTECH with respect to all Ad Requests that occur after such termination date pursuant to the payment rates and processes set forth in Section 1 of this Agreement, until such time as Customer removes all such Ad Tags from the Target Sites. ADTECH reserves the right to refuse Ads and Target Sites that it determines are objectionable in its sole discretion.
9. Representations and Warranties. Customer represents and warrants that (i) it has the full power and authority to enter into this Agreement; (ii) its execution, delivery and performance of this Agreement will not violate, conflict with, or result in a material default under any other contract or agreement to which it is a party, or by which it is bound; (iii) it is legally authorized to place the Ad Tags on the Target Site(s) and owns or has the rights to the Target Site(s) and the Ads sufficient to make use of the Ad Delivery Service and perform its obligations herein; (iv) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations; (v) its use of the Ad Delivery Service, the Ads delivered under this Agreement, Customer’s advertising activities, and the Target Sites’ content and business practices shall comply with all applicable laws and regulations, and will not be deceptive, pornographic, hate-promoting, misleading, obscene, libelous, invasive of others’ privacy, defamatory or otherwise illegal; (vi) it will not spread malicious code, viruses, Trojan horses, trap doors, malware, spyware or similarly harmful measures through the Ad Delivery Service; and (vii) it will not use the Ad Delivery Service in a manner that could reasonably be expected to damage the Ad Delivery Service, other customers of the Ad Delivery Service or Internet users, or otherwise reflect unfavorably on the reputation of ADTECH and its other customers.
10. Indemnification. Customer will indemnify, defend and hold ADTECH and its officers, directors, employees and agents (the “ADTECH Indemnified Parties”) harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, “Losses”) resulting from any claim, suit, action, or proceeding (each, an "Action") arising from (i) a breach or alleged breach by the Customer of any term or condition in this Agreement, (ii) the Ads, and any advertising materials provided by or on behalf of Customer (or its agent) to ADTECH under this Agreement, and (iii) the Target Site(s).
11. DISCLAIMER OF WARRANTY. ADTECH DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE AD DELIVERY SERVICE AND TECHNOLOGY PROVIDED HEREUNDER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, COURSE OF DEALING, PERFORMANCE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. THE AD DELIVERY SERVICE IS MADE AVAILABLE “AS IS” AND “AS AVAILABLE”. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADTECH DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE AD DELIVERY SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE AD DELIVERY SERVICE WILL MEET CUSTOMER’S NEEDS, REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE, RELIABLE OR FREE FROM LOSS; OR (D) THE AD DELIVERY SERVICE OR THE SERVER(S) THROUGH WHICH IT IS AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
12. LIMITATION AND EXCLUSION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ADTECH SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO THOSE RESULTING FROM ANY DELAY IN RENDERING SERVICES, LOSS OF DATA, LOSS OF USE OR THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THE AVAILABILITY, OPERATION OR USE OF THE AD DELIVERY SERVICE, USER INTERFACE, OR THE ADVERTISING OR DATA SUPPLIED HEREBY, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY), EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT ADTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER’S SOLE REMEDY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO THE AD DELIVERY SERVICE IS TO STOP USING SUCH SERVICE. IN THE EVENT THAT THE PRIOR PROVISION IS HELD INVALID, ADTECH’S TOTAL LIABILITY FOR ANY DAMAGES PERMITTED BY LAW DESPITE THIS LIMIT OF LIABILITY AND FOR DIRECT DAMAGES SHALL NOT EXCEED THE GREATER OF THE AMOUNT CUSTOMER PAID FOR THE USE OF THE AD DELIVERY SERVICE OVER THE SIX MONTHS PRECEEDING THE CLAIM OR ONE HUNDRED DOLLARS ($100).
13. General.
a. Publicity. Customer shall not make any use of ADTECH’s name or logo or make any public statement regarding this Agreement without ADTECH’s prior written consent. ADTECH shall have the right to use Customer’s name and logos in general marketing materials related to the Ad Delivery Service.
b. Notices. All notices, demands and other communications provided for or permitted under this Agreement shall be made in writing. Notices by ADTECH to Customer shall be made via e-mail, fax, or other written means and will be effective immediately. Customer agrees that Customer’s contact information set forth in Customer’s online account shall be the means by which ADTECH may send notices to Customer. Notices by Customer to ADTECH must be sent to the following:
ADTECH US, Inc.
ADTECH US, Inc.
Attn: Legal Notices 770 Broadway
New York, NY 10003
Email: AdtechLiteLegal@adtech.com

c. Assignment. Customer shall not assign this Agreement without ADTECH’s prior written consent. ADTECH may assign this Agreement or delegate its rights and obligations under this Agreement in whole or in part without Customer’s consent. Any attempted assignment in violation of the foregoing shall be void ab initio. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their permitted successors and permitted assigns.
d. Miscellaneous. Neither party shall be deemed to be a partner, joint venture or agent of the other. If any provision of this Agreement is held to be unenforceable, that provision shall be enforced to the maximum extent permissible and all other provisions shall remain in effect. This Agreement shall be governed by the laws of New York. The jurisdiction and venue for all disputes hereunder shall be the state and federal courts in New York County, New York. No failure or omission by either party in the performance of this Agreement shall be deemed a breach or create a liability if it arises from a cause beyond such party’s reasonable control, including, without limitation, ISP disruptions, failed network connections, hardware malfunctions, Internet viruses, and DNS attacks. This Agreement represents the entire agreement, and supersedes all prior understandings, between the parties regarding its subject matter. ADTECH reserves the right to modify this Agreement at any time by posting the new terms and conditions to the same link that Customer used to access this Agreement. Changes are effective immediately upon posting. Customer’s continued use of the Ad Delivery Service after such a change means that Customer accepts the changed Agreement. If Customer does not agree to the changed Agreement, its only recourse is to stop using the Ad Delivery Service. Section 1 (to the extent of outstanding payment obligations), and Sections 3 through 13 shall survive the termination of this Agreement.

Last updated July 11, 2011