Updated Terms – Data Octane
Terms & Conditions
This Agreement, along with the accompanying and subsequent invoices (each, an “Invoice”) shall define the parties’ obligations and liabilities with respect to Data Octane’s delivery or display of advertising campaigns and promotions on Advertiser’s behalf (each, a “Campaign” and collectively, the “Campaigns”). This Agreement is a material part of each and every Invoice generated by Data Octane. In the event of a conflict between this Agreement and any Invoice, the terms of this Agreement shall control.
- Advertiser’s Campaign(s)
Creative Materials: Advertiser shall provide all creative and substantive materials required for marketing the Campaigns, including but not limited to: html emails, text emails, “Subject” lines, “From” lines, and any other components required by applicable law (“Creative”). To the extent Data Octane provides assistance in the development of Creative, such assistance shall be limited to creative assistance. Advertiser is solely responsible and liable for the Campaigns, any and all material to which consumers can link through the Campaigns, and any and all Creative utilized for marketing the Campaigns, even if Data Octane developed or assisted in the development of a Campaign or Creative. In the event Data Octane develops, or assists in the development of a Campaign or Creative (“Custom Creative”), Advertiser may only use the Custom Creative for incorporation into Data Octane’s mailing services. Advertiser may not use the Custom Creative for any other purpose, including but not limited to placement with any other mailer, publisher or affiliate network, without prior written authorization from Data Octane. Advertiser agrees that Data Octane may make changes or alterations to the Creative or use any part of the html, images or URLs to deliver and/or generate traffic for the Advertiser. Additionally, Advertiser agrees that Data Octane may add special characters and/or emoticons to the Creative and Custom Creative. Advertiser agrees to confirm the correct function of all Creative supplied to Data Octane. If no confirmation is received, Data Octane will assume that the Creative is functioning properly, and Advertiser agrees to pay for all. Advertiser hereby grants to Data Octane and its email service providers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaign(s) and related Creative in connection with its obligations hereunder.
Delivery of Campaigns: Delivery of Campaigns: Without limiting the generality of the foregoing, Data Octane expressly reserves the right to, (i) refuse any advertising request, cancel any Campaign, and/or change any Campaign or Creative that does not completely conform to every material detail, instruction, method, and guideline set forth by Data Octane; (ii) refuse any Creative that does not arrive three (3) business days prior to the broadcast date; (iii) refuse or cancel the use of any Campaign or Creative that it deems, in its reasonable discretion, inappropriate or unlawful; and/or (iv) refuse at any time to publish or transmit any copy, photograph or illustration of any kind for any reason, including those that it believes, in its reasonable discretion, are an invasion of privacy, degrading, libelous, unlawful, profane, obscene, pornographic, tend to ridicule or embarrass, are in bad taste, or which in its reasonable discretion infringe upon any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any third party. Once approved by Advertiser, Data Octane is not responsible for the coding or display (including the failure to display) of any Creative. Data Octane is not responsible for a broadcast going out later than the Advertiser’s desired broadcast date or time if Advertiser has not provided all necessary materials and approvals at least three (3) business days in advance. Advertiser understands and agrees that Data Octane will drive traffic to the desired websites and/or landing pages using owned, licensed and/or third party data. Data Octane reserves the right to enhance traffic for the Advertiser using any form of digital traffic available in-house or with third parties at any time. Client acknowledges that Data Octane has the right to promote any specific URLs or links and any other part of the digital elements sent to us from the client, where we feel the advertiser can benefit most from the services being provided. Data Octane reserves the right to stop or reject traffic at any time to protect advertisers and clients from bot traffic, out of geo target traffic, too many concurrent connections traffic and or any other traffic resulting from the services being provided. Data Octane and our partners will do our best to ensure the correct DMA (Direct Media Accuracy) for all digital campaigns and will use best efforts to record and display the Direct Media Accuracy information on any reports related to the client and or advertiser. Data Octane will only use or rent geo specific data based on a specific or multiple zip code, city, county, state, MSA, country or worldwide level.
If a client or advertiser does not sign a Data Octane invoice related to a specific campaign but they still approve the campaign to broadcast by email or digital format/stamp/recording in an online system then this also confirms that the client or advertiser agrees to all Data Octane terms and the reflecting invoice. Data Octane is not responsible for complaints, blocked IP addresses, blocked or blacklisted domains, spam traps, domain or IP reputation, non-deliverables, or any other legal or business issues that might arise from the usage or broadcast of the data, domains, or IPs utilized.
Every broadcast will have an associated Invoice. Advertiser’s email approval of the Invoice or Creative for the applicable broadcast constitutes Advertiser’s approval and agreement to the terms of the Invoice, regardless of whether the Invoice itself is signed by Advertiser. Advertiser shall pay Data Octane within the number of days set forth in the applicable Invoice or, if no number is set forth in the Invoice, within fifteen (15) days after the end of the calendar month in which the broadcast occurred. Only invoices sent directly to Advertiser by Data Octane are to be construed as representative of billable amounts. >Any late payments will accrue interest equal to the lesser of one-and-one-half percent (1.5%) per month or the maximum amount allowable under law, compounded monthly. Where payment is made by credit card, Advertiser expressly agrees not to charge back any amounts billed. Any and all transaction or processing fees imposed upon Data Octane by a credit card company or Advertiser’s bank will be passed through to Advertiser. Data Octane shall be entitled to recover all reasonable costs of collection (including agency fees and attorneys’ fees) incurred in attempting to collect payment from Advertiser. Advertiser shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement except for income taxes. Data Octane does not offer refunds of any type, under any circumstances.
- Advertiser Representations and Warranties
- Mutual Representations and Warranties
Each party represents and warrants to the other party that: (i) the signatory has the full right and authority to bind such party; (ii) it has the full corporate or organizational right, power and authority to enter into this Agreement and to perform the acts required of it; (iii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, or any applicable law, rule or regulation; and (iv) each party shall render all services to the other party in a professional and commercially reasonable manner.
Advertiser agrees to defend, indemnify and hold harmless Data Octane, its parents, subsidiaries, affiliates, successors, assigns, partners, and their respective officers, directors, members, agents, employees, consultants, contractors, and attorneys (each, a “Data Octane Indemnified Party”), from all damages, liabilities, costs, and expenses actually incurred (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any demand, claim, proceeding, or investigation (each, a “Claim” and collectively, “Claims”) brought against any Data Octane Indemnified Party by a third party or parties or a government agency as a result of: (i) any actual or alleged breach of the terms of this Agreement or an associated Invoice; (ii) the marketing, sale, license, or use of Advertiser’s goods or services; (iii) any actual or alleged violation of an applicable law, rule, or regulation by Advertiser; or (iv) any other act, omission or misrepresentation by Advertiser.
Data Octane agrees to defend, indemnify and hold harmless Advertiser, its parents, subsidiaries, affiliates, successors, assigns, and their respective officers, directors, members, agents, employees, consultants, contractors, and attorneys (each, an “Advertiser Indemnified Party”), from all Losses resulting from any Claim brought against an Advertiser Indemnified Party by a third party or parties or a government agency as a result of acts of gross negligence or willful misconduct by Data Octane
If a party becomes aware of any matter it believes is indemnifiable hereunder, it shall provide prompt written notice of such matter to the other party. The notice shall (i) provide the basis on which indemnification is being asserted, and (ii) be accompanied by copies of all relevant pleadings, demands, and other information related to the matter in the possession of the party seeking indemnification. The indemnified party reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the indemnifying party hereunder. No settlement may be consummated without the express written authorization of the indemnified party, which shall not be unreasonably withheld.
- Limitations on Warranties and Liability
THE ADVERTISING SERVICE PROVIDED BY DATA OCTANE, THE USE OF THE SERVICE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, DATA OCTANE MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. DATA OCTANE DOES NOT WARRANT OR GUARANTEE THE LEGALITY OF ANY CAMPAIGN, CREATIVE OR CUSTOM CREATIVE; CAMPAIGN PERFORMANCE; CONVERSION RATES; RESPONSE RATES; OR ABILITY TO CONVERT THE RESPONSES INTO SALES. DATA OCTANE DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE, OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON DATA OCTANE’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND DATA OCTANE IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. DATA OCTANE WILL MAKE EVERY EFFORT TO MEET SCHEDULED FLIGHT AND DELIVERY DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES. ADVERTISER IS SOLELY RESPONSIBLE FOR COMPLYING WITH THE REQUIREMENTS OF ITS VENDORS AND SERVICE PROVIDERS, INCLUDING BUT NOT LIMITED TO EMAIL SERVICE PROVIDERS AND CALL FLOORS, AND LEAD ME MEDIA MAKES NO WARRANTIES OR GUARANTEES WITH RESPECT TO THE DELIVERABILITY OR PERFORMANCE OF THE DATA PROVIDED TO SUCH VENDORS AND SERVICE PROVIDERS. IN NO EVENT SHALL DATA OCTANE BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOSS OF OR CORRUPTION TO DATA, OR LOST PROFITS (EVEN IF DATA OCTANE WAS ADVISED OF THE POSSIBLITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY ASSOCIATED INVOICE. UNDER NO CIRCUMSTANCES SHALL LEAD ME MEDIA’S AGGREGATE LIABILITY TO ADVERTISER OR ANY THIRD PARTY FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY EXCEED THE AMOUNTS PAID OR PAYABLE TO DATA OCTANE UNDER THE APPLICABLE INVOICE IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE DAMAGES.
- Term & Termination
This Agreement applies to the parties for as long as Data Octane provides advertising services for Advertiser. Either party may terminate this Agreement upon two (2) business days prior written notice to the other party. Termination of this Agreement shall not relieve Advertiser from its obligation to pay any fees that have accrued prior to the date of termination. Notwithstanding the foregoing, Data Octane reserves the right to suspend and/or terminate this Agreement immediately in the event that Advertiser violates any term set forth in this Agreement.
For purposes of this Agreement, “Confidential Information” shall include the terms of this Agreement and any proprietary information that is provided by a party to the other party (whether designated as confidential or not), including without limitation: the identities of Data Octane’s email service providers and consultants, email quality and performance, mailing strategies and methodologies, domain information, targeting information and processes, test results, statistics, reports (including but not limited to any and all reporting related to open rates, click-through rates, CPM performance, targeting processes, and domain performance), and other information that is proprietary in nature. Each party shall only use the other party’s Confidential Information in its performance of this Agreement or to enforce its rights under this Agreement. Neither party shall at any time disclose any Confidential Information to any third party in violation of this Agreement, unless and until notice is provided to the Confidential Information disclosing party (“Disclosing Party”) in sufficient time to seek injunctive relief or a protective order, and in the event such protection is not obtained or the Disclosing Party waives compliance with this provision, the Confidential Information receiving party (“Receiving Party”) agrees that it will disclose only that portion of the Confidential Information that it is legally required to disclose.
The foregoing confidentiality provisions shall not apply where the Receiving Party can demonstrate that the information: (i) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the Receiving Party; (iii) was rightfully received from a third party who was not bound under any confidentiality provisions; or (iv) was independently developed by a party without use of or reliance upon the Disclosing Party’s Confidential Information. The parties agree that monetary damages for breach of these restrictive covenants may not be adequate and that the non-breaching party shall be further entitled to injunctive relief without the necessity of posting a bond or other security.
During the term of this Agreement and for a period of two (2) years thereafter, Advertiser shall not solicit for hire or employment, or hire, employ, engage, or contract for services with any employee, former employee, or independent contractor of Data Octane or its subsidiaries or affiliates. For purposes of this Agreement, “former employee” shall mean any person employed within the twelve (12) month period prior to the date that the solicitation first occurred. Advertiser agrees that a breach of this Section 10 would be a material breach of this Agreement and may result in irreparable injury to Data Octane for which monetary damages would be inadequate. In the event of such a breach, Advertiser agrees that Lead Me Media may seek, in addition to other remedies available to it by law or pursuant to this Agreement, immediate injunctive relief against Advertiser and that such injunctive relief may be sought by Data Octane without the need to post a bond.
- Entire Agreement; Modification
This Agreement and the associated Invoices represent the entire agreement between the parties hereto and supersede all prior or contemporaneous agreements, whether written, oral, express, or implied, of the parties with respect to the matters set forth herein. This Agreement may not be modified or amended except in writing by authorized representatives of both parties. No online or click-through terms, conditions, policies, or documents (“Online Terms & Conditions”) offered by Advertiser shall be deemed to have modified this Agreement, notwithstanding the fact that Data Octane may have affirmatively accepted such Online Terms & Conditions as a condition of accessing an online service.
This Agreement shall be governed by the laws of the state of Maryland without respect to choice of law rules. The parties hereby consent to exclusive jurisdiction and venue in the courts in Baltimore County, Maryland for all matters arising from or relating to this Agreement. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given at the time such communication is received via confirmed email, or delivered personally, or by registered or certified mail (return receipt requested) or recognized national overnight courier service, or at the time delivery is refused, to the addresses set forth on the most recent Invoice. Neither party may assign this Agreement without the express prior written consent of the other party. Notwithstanding the foregoing, consent of the other party shall not be required for assignment or transfer made by (i) operation of law, or (ii) to an entity that acquires substantially all of the party’s stock, assets or business. Each party is an independent contractor. Any intention to create a joint venture or partnership between the parties is expressly disclaimed. Except as otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the party may possess at law or in equity. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. Any obligations which expressly or by their nature are to continue after termination of this Agreement shall survive and remain in effect, including but not limited to Sections 3-7 and 9-12. In the event any portion of this Agreement shall be declared invalid by any court of competent jurisdiction, such portion shall be severed from this Agreement and the remaining parts hereof shall remain in full force and effect.