This Cyber Mandate Advertiser Agreement (“Advertiser Agreement”), shall govern the relationship between Cyber Mandate, Ltd., a Seychelles corporation (“CyberM”), and the Advertiser (“Advertiser”), whereby Advertiser may obtain access to the network (“Cyber Mandate Network”) of registered third party affiliates (“Affiliates”) and publishers (“Publishers”), and related technology and software (“Cyber Mandate Ad Server”), to market customized advertisements and links provided by Advertiser and/or Cyber Mandate (“Ads,” as further defined below). The Cyber Mandate Network, as well as the services provided by Cyber Mandate in connection therewith (“Services”), are further described in the Insertion Order (“IO”) attached hereto and incorporated herein by reference (the IO, together with this Advertiser Agreement, the “Agreement”). The terms of the IO shall supersede all contrary terms set forth in this Advertiser Agreement, unless expressly set forth to the contrary. In any instance where Advertiser is an agency entering into the Agreement on behalf of a client, any reference to “Advertiser” shall refer jointly to Advertiser as well as the applicable underlying client.
1. Cyber Mandate Network/Services. Advertiser agrees to accept and pay for, and Cyber Mandate agrees to provide, the Services identified and set forth in the Agreement. In connection with the Services, Cyber Mandate shall undertake marketing campaigns with Advertiser (each an “Ad Campaign”) whereby Cyber Mandate will distribute Advertiser’s proprietary advertising materials including, without limitation, banners, buttons, text-links, clicks, co-registrations, pop-ups, pop-unders, e-mail, graphic files and similar online media (collectively, “Advertiser Ads”) and/or, where applicable, Cyber Mandate Ads (as defined below) through the Cyber Mandate Network either: (a) on Publisher websites via the Cyber Mandate Ad Server for impressions-based Ad Campaigns (“CPM”); or (b) by Affiliates via e-mail based marketing, search engine marketing, website based marketing and/or other online marketing means. In connection with such Ad Campaigns, Advertiser shall pay Cyber Mandate commissions depending on the number of valid clicks, impressions, sales/actions (“CPA”), applications and leads (“Leads”), and/or such other compensable activities generated on behalf of Advertiser as set forth in the subject IO (collectively, “Actions”). The applicable Actions, the fees due to Cyber Mandate for each Action and other applicable terms and conditions of the Ad Campaigns entered into hereunder shall be specified in each IO. Cyber Mandate shall not be held liable or responsible for any actions or inactions of its Publishers or Affiliates.
2. Account. Upon the execution of the Agreement, Advertiser must register on the Cyber Mandate website and create a unique, password-protected account (“Account”). Advertiser will be responsible for safeguarding and maintaining the confidentiality of its Account and associated password. Advertiser shall remain fully and solely responsibility for any and all actions taken under Advertiser’s Account, whether authorized by Advertiser or not. Advertiser must immediately notify Cyber Mandate of any unauthorized use of Advertiser’s Account. Advertiser is responsible for keeping its Account information current, complete and accurate, and Advertiser acknowledges and agrees that Cyber Mandate will have no responsibility or liability, directly or indirectly, for failure to deliver notices as a result of inaccurate Account information.
3. Ads. Advertiser shall develop all aspects of the Advertiser Ads, other than where the parties agree that Cyber Mandate shall assist in the development of Ads. The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Advertiser Ads; other than those portions that Cyber Mandate prepares on Advertiser’s behalf (such portions hereinafter referred to as, the “Cyber Mandate Ads” and together with the Advertiser Ads, the “Ads”). The parties understand and agree that Cyber Mandate is the sole owner of any and all intellectual property rights associated with the Cyber Mandate Ads, other than Advertiser’s trademarks, logos, copyrights and other pre-existing Advertiser intellectual property incorporated in the Cyber Mandate Ads. Under no circumstances shall Cyber Mandate be authorized to use the Ads other than in connection with Advertiser’s Ad Campaigns as set forth in the IO(s). Advertiser will provide the Advertiser Ads to Cyber Mandate in accordance with the Cyber Mandate Advertising Guidelines as same are updated from time to time (“Ad Guidelines”). Advertiser shall submit all Advertiser Ads to Cyber Mandate for approval prior to the commencement of the subject Ad Campaign set forth in the applicable IO. Advertiser shall not alter, modify or otherwise change the Ads, or any other Ads-related feature, in any manner whatsoever, without obtaining Cyber Mandate’s prior express written consent, after the applicable Ad has been approved by Cyber Mandate. Notwithstanding the foregoing, Cyber Mandate shall have sole discretion with respect to the creation of the “subject” and “from” lines used in its e-mailing of any Ads. Cyber Mandate reserves the right, in its sole discretion and without liability, to: (a) change any of its Ad Guidelines at any time; and (b) to reject, omit, exclude or terminate any Ad for any reason at any time, with subsequent notice to the Advertiser, whether or not such Ad was previously acknowledged, accepted or published by Cyber Mandate. Such reasons for rejection, omission or exclusion of Ads include, but are not limited to, where Cyber Mandate deems, in its sole discretion, that the Ads, including the applicable products and/or services promoted by such Ads (“Advertiser Products”), and any website linked to from such Ads, are in violation of any applicable law, rule, regulation or other judicial or administrative order or where the content thereof may tend to bring disparagement, ridicule or scorn upon Cyber Mandate or any of its Publishers and/or Affiliates. Advertiser reserves the right to reject, omit, exclude, terminate or request a change to the Ads at any time and Cyber Mandate shall, subject to the provisions set forth herein, comply with such request as soon as practical but in no event later than three (3) business days after its receipt thereof. Advertiser may cancel or suspend a CPM-based Ad Campaign, or an Ad associated with such a CPM-based Ad Campaign, effective within approximately twenty-four (24) business hours of Cyber Mandate’s receipt of Advertiser’s cancellation notice, which Advertiser can deliver by logging into its Account and following the instructions on the applicable menu.
4. Placement. The positioning, placement, frequency and other editorial decisions related to Ads shall be made by Cyber Mandate and/or its Affiliates and Publishers, as applicable, in their respective sole discretion. The applicable IO may set forth the particular place(s) where Ads may appear and/or be distributed. Advertiser agrees that in a case where no points of placement or distributions are set forth in the applicable IO or, in cases where “Run of Network” or similar designation is specified in the applicable IO, the Ads may appear at any point of placement and/or distribution that Cyber Mandate and/or its Affiliates and Publishers may determine, in their respective sole discretion.
5. Ad Codes. Unless otherwise stated in writing by Cyber Mandate, each Ad used by Cyber Mandate in connection with an Ad Campaign must include, in unaltered form, the special transaction tracking computer code provided by Cyber Mandate (“Ad Codes”). Advertiser will not knowingly modify, circumvent, impair, disable or otherwise interfere with any Ad Codes and/or other technology and/or methodology required or made available by Cyber Mandate to be used in connection with any and all Ads. In connection with CPA-based Ad Campaigns, Advertiser agrees to pay Cyber Mandate a default payment of Fifty Cents ($0.50) CPM on a net thirty (30) day basis in instances where conversion data cannot be supplied due to a failure of the Ad Codes and Advertiser’s inability to provide such information, in the alternative. All determinations made by Cyber Mandate in connection with the Ads, Actions and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Cyber Mandate’s Services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher, Affiliate or other third party.
7. Payments. The rates for Actions shall be set forth in the applicable IO(s). Cyber Mandate will invoice Advertiser twice monthly. Unless otherwise set forth in the applicable IO, payment will be due to Cyber Mandate within thirty (30) days of the date appearing on each invoice. If payment is not made in a timely manner, Cyber Mandate may, at its option, immediately terminate the Agreement and/or any applicable IO(s). Interest will accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5%) per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Cyber Mandate for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Advertiser agrees and acknowledges that it shall be fully responsible for any and all taxes, whether state or local, and related fees, costs and penalties incurred by Cyber Mandate and/or any of its Publishers or Affiliates pursuant to Chapter 57 of the Laws of 2010 amending the Massachusetts State Tax Law.
8. Leads/CPA/Unaccepted Actions. In connection with Leads and CPA-based Ad Campaigns, Advertiser will pay Cyber Mandate for all Actions generated; provided, however, that Advertiser shall have no obligation to pay for any Lead/CPA-based Action that: (a) it rejects within five (5) days of its receipt thereof; and (b) both parties determine is not a Valid Action (as defined below). Where Cyber Mandate determines that such Action is a Valid Action, Advertiser must pay for same. A “Valid Action” means an individual person that: (i) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method designed to appear like an individual, real live person; (ii) in the case of CPA-based Campaign, is a valid sale that is not fraudulent, cancelled, charged back or otherwise nullified; and (iii) in the case of Leads-based Campaigns, has submitted information that meets all of Advertiser’s criteria as set forth in the applicable IO. The data associated with any and all Lead/CPA-based Actions (“Action Data”) that are not both accepted and paid for by Advertiser shall be deemed the Confidential Information of Cyber Mandate, subject to any and all restrictions set forth herein (“Unaccepted Action Data”). Upon Advertiser’s acceptance of a Lead/CPA-based Action (and payment to Cyber Mandate therefore in accordance with payment terms set forth herein and in the applicable IO), Cyber Mandate shall grant to Advertiser joint ownership and the full right to use such Action Data. Where Advertiser does not accept Leads/CPA-based Actions, where Advertiser fails to make payments for same in accordance with the payment terms herein and in the applicable IO and/or where such Leads/CPA-based Actions are later determined not to be Valid Actions, Advertiser shall have no rights in and to such Action Data, and such Action Data shall be considered and treated as Unaccepted Action Data. Without limiting the generality of the confidentiality obligations set forth herein, Advertiser agrees that it: (A) will not transfer, export, display, forward or otherwise share information contained in the Unaccepted Action Data to/with any third party; (B) will not use the information contained in the Unaccepted Action Data on its own behalf in any manner not expressly authorized by Cyber Mandate; (C) will not use the information contained in the Unaccepted Action Data to create any interactive on-line, CD-ROM or other derivative product; (D) will not publicly display the information contained in the Unaccepted Action Data on the Internet; and (E) will notify Cyber Mandate as soon as it learns of any actual or suspected unauthorized use of or access to the information contained in the Unaccepted Action Data and provide reasonable assistance to Cyber Mandate in the investigation and prosecution of any such unauthorized use or disclosure.
THE CYBER MANDATE NETWORK, SOLUTIONS, CYBER MANDATE ADS, AD GUIDELINES, ACTIONS AND AD CODES PROVIDED BY CYBER MANDATE UNDER THE AGREEMENT AND/OR ANY APPLICABLE IO ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT OF THE LAW, CYBER MANDATE MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CYBER MANDATE DOES NOT WARRANT OR GUARANTY ACTIONS, CONVERSION RATES AND/OR RESPONSE RATES. THE CYBER MANDATE NETWORK, SOLUTIONS, CYBER MANDATE ADS, AD GUIDELINES, ACTIONS AND/OR AD CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. CYBER MANDATE HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND CYBER MANDATE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY’S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. CYBER MANDATE HAS NO LIABILITY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE AD GUIDELINES OR APPLICABLE ACTIONS AND CYBER MANDATE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND/OR IMPLIED, THAT ADVERTISER’S USE OF THE CYBER MANDATE NETWORK, SOLUTIONS, CYBER MANDATE ADS, AD GUIDELINES AND/OR ACTIONS WILL BE UNINTERRUPTED OR ERROR-FREE. CYBER MANDATE MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET SCHEDULED DELIVERY DATES. IN NO EVENT SHALL CYBER MANDATE BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, EVEN IF CYBER MANDATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CYBER MANDATE WILL NOT BE LIABLE, OR CONSIDERED IN BREACH OF THE AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THE AGREEMENT AND/OR ANY IO AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND CYBER MANDATE’S CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, CYBER MANDATE’S LIABILITY UNDER ANY CAUSE OF ACTION SHALL BE LIMITED TO THE AMOUNTS PAID TO CYBER MANDATE BY ADVERTISER DURING THE PRIOR SIX (6) MONTH PERIOD PURSUANT TO THE AGREEMENT. CYBER MANDATE SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTIONS OR INACTIONS OF PUBLISHERS AND/OR AFFILIATES.
15. Force Majeure. Other than with respect to payment obligations arising hereunder, neither party will be liable, or be considered to be in breach of this Agreement, on account of such party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
(b) Choice of Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the Republic of Seychelles. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of the Republic of Seychelles, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
(c) Modification. The Agreement, any exhibits attached hereto and any and all applicable IO(s) represent the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The Agreement, any exhibits attached hereto and any and all applicable IO(s) may be amended only by a written agreement executed by an authorized representative of each party. To the extent that anything in or associated with any IO is in conflict or inconsistent with the Agreement, the IO shall take precedence.
(d) Non-Waiver/Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
(e) Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that Cyber Mandate acts as a limited agent of Advertiser for the sole purpose of performing the Services set forth in applicable IO(s).
IN WITNESS WHEREOF, Cyber Mandate and Advertiser have caused this Advertiser Agreement to be executed by their duly authorized representatives.