Elliptic Marketing Customer Terms and Conditions
These terms and conditions (“Elliptic Marketing T&Cs“) govern insertion orders (each, an “IO“) entered into between Elliptic Marketing, LLC. (“Elliptic Marketing“), on the one hand, and an “Advertiser” and/or its “Agency” (individually or collectively, the “Customer” and either or both as identified on the IO), on the other hand. Any and all IOs are subject to being accepted by Elliptic Marketing in its sole discretion as evidenced by its approval or confirmation in writing (including by email). Upon acceptance of an IO by Elliptic Marketing, these Elliptic Marketing T&Cs and any accepted IO(s) are collectively referred to as the “Advertiser Agreement.” No reference or incorporation of any other terms and conditions (other than these Elliptic Marketing T&Cs) that may be exchanged by or among the parties will have legal force or effect unless the parties to such IO agree in such IO in writing expressly to replace and supersede these Elliptic Marketing T&Cs with such other terms and conditions. Capitalized terms used in this Advertiser Agreement not otherwise defined herein shall have the meaning as defined in the IO, or if not defined herein or in the IO, as reasonably understood by the nature and context in this Advertiser Agreement and/or the IO.
1.Services. (a) The IO, if accepted by Elliptic Marketing, sets forth the pricing and other terms of each service Elliptic Marketing agrees to perform for the Customer in accordance with any specifications expressly agreed in such IO (each, a “Service“). Any changes in specifications or Service type or level must be mutually agreed in writing in a supplemented or amended IO. In performing Services, Elliptic Marketing may use certain content, information, tools and/or other technology or intellectual property rights used, developed, acquired and/or licensed by Elliptic Marketing generally in the conduct of its business of performing Services for persons including the Customer (i.e., not sourced exclusively for performing the Services solely for Customer) (individually or collectively, the “Elliptic Marketing Solution“).
(b) The Services offered by Elliptic Marketing may involve Elliptic Marketing accessing Advertiser’s accounts with a third party service provider, network, exchange or platform (such as YouTube or other online channels, social media network, or forums as specified in the IO) (each, a “Third Party Platform“). Each Advertiser’s account on a Third Party Platform will be referred to as an “Advertiser’s Account.” Elliptic Marketing will have the right to access Advertiser’s Account(s) to take any action Elliptic Marketing deems appropriate in its reasonable discretion to perform the IO including administering bidding, allocating media budget, configuring settings, synching, collecting and analyzing data, and/or otherwise using any information and data accessible via the Advertiser’s Account. Advertiser’s user id and password, billing information, etc. that may be used or viewed via Advertiser’s Account(s) will be deemed Confidential Information (as defined below) of Advertiser, and use thereof will be limited to Elliptic Marketing’s personnel who need to access and use Advertiser’s Accounts to fully perform the IO including for a reasonable period after concluding actual performance for billing, measurement and other purposes. Advertiser or Agency, as applicable, will be solely liable for costs and expenses arising out of Elliptic Marketing’s use of Advertiser’s Accounts to perform any IO. All costs and payments owing to Elliptic Marketing (including media buys and/or other costs that may be advanced by Elliptic Marketing instead of paid directly by Advertiser) will be paid by in accordance with the IO subject to Section 2 below.
(c) Elliptic Marketing may provide a copy of an IO with Advertiser or Agency as verification of Elliptic Marketing’s right and authorization to act on behalf of Advertiser as contemplated herein including if requested by a third party (such as YouTube or any other Third Party Platform) provided that Elliptic Marketing will not reveal any financial terms with Customer. At no time during or after performance of any Services under any IO will Advertiser or Agency dispute the existence or validity of Elliptic Marketing’s authorization and rights hereunder.
2.Payment. (a) For the purposes of the IO and this Advertiser Agreement, the following terms will have the following meanings:
“Billable Bookings” means the amount of actual spending for the benefit of the Customer on media placements or bookings made in connection with performance of the Services contemplated by the relevant IO,netof chargebacks, refunds, and other adjustments affecting the amount actually spent, and expressly excluding any VAT, sales, service, excise and similar taxes (other than any party’s income tax).
“Media Budget” means, as specified in the relevant IO or approved in writing (including by email) by Customer, the maximum amount of media spending (plus up to 10% overage) that Elliptic Marketing is authorized to spend on the media buy portion of any Services performed by Elliptic Marketing. Accordingly, unless specified in the IO, the Technical Fees and Management Fees (and any other fees, taxes, costs and/or disbursements paid or collected for any aspect of the Services that are not specifically the media buy) will not count against the Media Budget. Any increases to the Media Budget (beyond any 10% overage) must be approved in writing (including by email) by Customer.
“Management Fee“ means the fees, as specified in the relevant IO, that is assessed by Elliptic Marketing for performance of Services relating to the management of a media buy, placement, optimization or other flight or campaign.
“Technology Fee” means a fee that may, as specified in the relevant IO, be assessed by Elliptic Marketing for the benefits availed by the Elliptic Marketing Solution. Payment of the Technology Fee is not meant to allow for direct access and use of the Elliptic Marketing Solution covered by such fee. (Elliptic Marketing will generally not charge the Technology Fee on a duplicate basis if Customer is already paying for a then-active subscription and separate access right to the Elliptic Marketing Solution that needs to be utilized.)
As specified in the relevant IO, the Management Fee or Technology Fee may be calculated as a percentage of a Customer’s Net Billable Bookings or, depending on the Service(s) performed, can be a one-time or recurring fixed or flat fee, or a hybrid thereof. Elliptic Marketing may, when expressly agreed in the relevant IO, offer Services on a performance-based fee arrangement where the Customer would pay to Elliptic Marketing a non-refundable and irrevocable amount of Media Budget, and Elliptic Marketing would retain the balance as its Management Fee and/or Technology Fee after spending for any Billable Bookings (without any obligation to provide any breakdown or other accounting to Customer), all as agreed and specified in a relevant IO.
(b) Each of the Services must be, as indicated in the relevant IO: (i) paid upon Customer’s execution of the IO (subject to Elliptic Marketing’s acceptance thereof); and/or (ii) paid when invoiced by Elliptic Marketing in advance or arrears; in both cases, subject to and without duplication with any costs paid directly by Customer via the Advertiser’s Account(s) that may be used by Elliptic Marketing in performing the IO(s). Any initial implementation, set-up or similar fees in the IO will be invoiced in the first invoice to Customer. Customer is responsible for paying all sales, use, excise and other taxes (other than Elliptic Marketing’s income tax) which may be levied in connection with charging any fees hereunder (whether or not specifically itemized in any invoice or otherwise). Invoices may be sent by either e-mail or postal mail, or both. Payment is due within thirty (30) calendar days following the date of invoice, and must be in U.S. dollars. Customer will adhere to Elliptic Marketing’s applicable payment instructions and policies if using credit cards, wire transfer or other payment method. Payments that are past due shall accrue interest at the rate of 1.5% per month compounded monthly (or, if less, the highest rate permitted by applicable law). All costs of collection, including reasonable legal fees and expenses, incurred by Elliptic Marketing shall be borne by the Customer. No deduction or set off by Customer of any amounts payable to Elliptic Marketing hereunder against any other obligations between or among the parties is permitted, including as between and among other IOs or against any other amount or liability that Elliptic Marketing may owe to Advertiser or Agency or other third party.
(c) Invoicing and reporting is handled by Elliptic Marketing using its own numbers and measurement processes as determined by Elliptic Marketing in its sole discretion. Such processes may involve using account measurements and reporting made available by Third Party Platforms, in which case Elliptic Marketing’s reporting and invoices may be subject to the timing of when such Third Party Platforms make available their numbers and measurements. Customer may use a third party to track performance upon the prior written consent of Elliptic Marketing, which consent may be conditioned upon Customer and Elliptic Marketing agreeing how to handle discrepancies or differences revealed by any such third party tracking, provided that, unless agreed or resolved differently by the parties, if a discrepancy showing under-delivery is alleged by Customer, then in lieu of a refund or other liability, Customer’s sole right and remedy shall be either re-performance of the relevant portion of a Service or placement of make-goods.
(d) In the case of any Agency listed on the IO, Agency and Advertiser will be jointly and severally liable for payments for all Services ordered under the IO and charged or invoiced by Elliptic Marketing, irrespective of whether Agency’s “Advertiser client” is known to Elliptic Marketing. Should sums not have been cleared to Agency, Agency will make every reasonable effort to collect and clear payment from such Advertiser client on a timely basis. Upon Elliptic Marketing’s request, Agency will make available written confirmation of the relationship between Agency and its Advertiser client, which confirmation will include, for example, such Advertiser client’s appointing or acknowledging Agency as its agent to act on its behalf and/or the terms by which Agency has been or will be paid funds sufficient to cover the obligations under the relevant IO(s). Agency’s credit is established on an Advertiser client-by-client basis. Elliptic Marketing may reassess the Agency’s credit as and when Agency fails to clear any Advertiser client’s proceeds (including as to other advertisers also represented by such Agency).
3.Ownership.(a)Customer acknowledges that Elliptic Marketing and its licensors and suppliers own all right, title, and interest in the Elliptic Marketing Solution, together with any software and hardware technology and infrastructure, as well as the business model and any data, data stores, reports, analyses and frameworks, and the proprietary methodologies and processes used to perform any Service. Elliptic Marketing welcomes requests, instructions or other suggestions, but in making the same, Customer agrees that such suggestions will become the property of Elliptic Marketing, and Elliptic Marketing has no obligation to compensate Customer for such suggestions. In the event of a third party claim against either: (x) the Elliptic Marketing Solution or any intellectual property therein or thereto; or (y) Elliptic Marketing’s right to offer any Service (or if, in Elliptic Marketing’s opinion, such a claim is likely), Elliptic Marketing shall have the right, at its sole option, discretion, and expense, to: (i) secure the right to continue using the intellectual property or provide the Service; or (ii) use commercially reasonable efforts to replace or modify the same to make it non-infringing or without misappropriation, provided that any such replacement or modification will have similar operating capabilities and functionalities of the allegedly infringing services provided hereunder; or (iii) terminate the provision of the portion that is or allegedly is infringing without further obligation or liability except a proportionate or appropriate adjustment to any future fees charged if such terminated portion is determined by Elliptic Marketing to be material to the Elliptic Marketing Solution or Service, as the case may be. The preceding constitutes Customer’s sole rights and remedies in the event of any actual or alleged third party claim.
(b) Any right on the part of Customer to use or enjoy the benefits of any Elliptic Marketing Solution does not include a license or other rights to any of the underlying technology or data used to provide the Elliptic Marketing Solution. Customer will not (i) encumber, transfer, sublicense, distribute, reproduce, create derivative works of or otherwise modify any products or services made available through access to the Elliptic Marketing Solution, (ii) rent, lease, sell, assign or otherwise transfer rights in or to, or make available for timesharing, application service provider or service bureau use of, the Elliptic Marketing Solution in whole or in any part, (iii) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Elliptic Marketing Solution, (iv) engage in any systematic extraction of data or data fields from the Elliptic Marketing Solution, (v) disclose, harvest, or otherwise collect sensitive information, including unique identifiers, e-mail addresses, or other personal or personally identifiable information, about any third party without that party’s express consent, (vi) use the Elliptic Marketing Solution in any manner contrary to the Elliptic Marketing’s intent and purpose in offering the product and service offering or in conflict with applicable laws or established norms of industry conduct, standards or policies, or (vii) knowingly permit any third party, including any Authorized User, to do any of the foregoing.
4.Advertising Materials, etc. (a) Customer will deliver all advertising materials that may be required by Elliptic Marketing in relation to performing any media buy or other Service under the IO (“Advertising Materials“) according to specifications required by Elliptic Marketing and/or relevant Third Party Platform(s). Where such Advertising Material does not conform to technical specifications or does not arrive timely enough for the IO to be performed according to agreed dates, then Elliptic Marketing may, in its sole discretion, (x) refuse to perform and refund any applicable amounts paid in advance; or (y) postpone performance until a reasonable period of time after either (i) the non-conforming Advertising Materials are corrected or (ii) the late-arriving Advertising Materials are received; provided that, in any and all such cases, Elliptic Marketing may begin to charge the Customer on the IO start date on a pro rata basis based on the full IO for each full day the Advertising Materials are not received.
(b) Both Advertiser and any Agency (if any) are responsible for any liability arising out of or relating to any Advertising Materials as well as any material, site, application, service, transaction or other offering to which an end user can reach or effect through such Advertising Materials (“Linked Offerings“), and each represents and warrants that (x) no part of the Advertising Materials or Linked Offerings will: (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any law, statute, ordinance or regulation, including laws and regulations governing export control, false advertising or unfair competition; (iii) be defamatory or libelous; (iv) be pornographic or obscene; or (v) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines; and that (y) the product or service being promoted through any Advertising Materials is not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities.
(c) Elliptic Marketing accepts no responsibility for the policies or practices of any Third Party Platform or any enforcement by any third party thereof, including the classification or type of content it accepts whether now or in the future. Advertising Materials or Linked Offerings may be excluded or banned from any Third Party Platform or other resource at any time, or a Third Party Platforms may drop Advertising Materials or Linked Offerings or media placements from its database for no apparent or predictable reason; in either such event, Elliptic Marketing’s only obligation will be to use reasonable efforts to re-submit resources to a Third Party Platform. Except in the case of Elliptic Marketing’s willful misconduct or gross negligence, Customer agrees not to hold Elliptic Marketing responsible for any liability or actions that may be taken by a Third Party Platform due to performance of Services under this Advertiser Agreement.
(d) Elliptic Marketing reserves the right to reject or remove any Advertising Material at any time if Elliptic Marketing determines in its sole discretion that such Advertising Material (or Linked Offerings) does not meet its standards or comply with the IO or with any applicable laws, industry guidelines, or the terms and conditions governing the relevant Third Party Platform. Elliptic Marketing reserves the exclusive right to agree or disagree any strategies or techniques requested by Customer or presently employed by Customer that Elliptic Marketing considers to be detrimental to the execution of any Services. Elliptic Marketing also reserves the right to demand third party verification for any claims made in any Advertising Materials (or Linked Offerings) and to terminate any IO and/or this Advertiser Agreement in the event that such verification is not promptly provided or is unsatisfactory in Elliptic Marketing’s sole discretion.
(e) In connection with performing Services, Customer hereby grants Elliptic Marketing, or will obtain for Elliptic Marketing’s benefit, the right to access, index, cache, reproduce, adapt, create derivative works of, and display the Advertising Materials, Linked Offerings, or Advertiser’s site(s) or other offerings, as well as any publicly available information about the same (including through automated means, such as web spiders or crawlers, or use of the Elliptic Marketing Solution), and specifically (without limitation) includes the right to use text, graphics, images, audio, video, and other materials found thereon or therein, including to develop, source, reproduce and display descriptions, tags, and transcripts as well as thumbnails and full-scale copies of any images or video in performing any IO or to the full extent permitted by applicable law. Such right shall include the right to sublicense third party service providers to exercise the same rights in connection with performance of the Services. All materials developed or sourced by Elliptic Marketing hereunder will be deemed to be “Advertising Materials” for the purposes of this Agreement upon Customer’s approval thereof and, absent Elliptic Marketing’s willful misconduct or gross negligence, Elliptic Marketing will not be liable or responsible for use or display of any such Customer-approved materials.
5.Confidentiality. Each of Advertiser and Agency, on the one hand, and Elliptic Marketing, on the other hand, may provide the other party with information that is confidential and proprietary to such party or a third party (“Confidential Information“) provided all such Confidential Information shall be designated or labelled as such by the disclosing party. The receiving party agrees to make commercially reasonable efforts, but in no case less effort than it uses to protect its own Confidential Information, to maintain the confidentiality of and to protect any proprietary interests of the disclosing party. Notwithstanding anything to the contrary, the methodologies and processes used by Elliptic Marketing to perform any Services, the Elliptic Marketing Solution (including the results thereof and associated databases), any pricing terms in any IO, measurement processes, and any reporting or analytical models and templates produced by Elliptic Marketing are deemed to be Elliptic Marketing’s Confidential Information. No Advertising Materials will be deemed to be Confidential Information unless expressly marked as “confidential” with a date specified as to when it ceases to be Confidential Information. Confidential Information shall not include, even if designated as such by a party, information (a) that is or becomes part of the public domain through no act or omission of the receiving party, or (b) that is lawfully received by the receiving party from a third party without restriction on use or disclosure and without breach of this Advertiser Agreement or any other agreement without knowledge by the receiving party of any breach of fiduciary duty, or (c) that the receiving party had in its possession prior to the date of this Advertiser Agreement, or (d) is independently developed by the receiving party without use of the Confidential Information of the disclosing party.
6.Representations and Warranties. Customer represents, warrants and covenants that: (a) it has all rights necessary to authorize Elliptic Marketing to access Advertiser’s Accounts and any information accessible thereon if and as contemplated by any IO and this Advertiser Agreement; and (b) it will comply with all applicable laws, rules, and regulations and common industry practices, policies and standards. Each party represents and warrants to the other party that: (x) it has full power and authority under all relevant laws and regulations and is duly authorized to enter into the Advertiser Agreement and each IO; and (y) to its knowledge, the execution, delivery, and performance of this Advertiser Agreement and each IO does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violates any law or regulation of any court, governmental body, or administrative or other agency having jurisdiction over it.
7.Disclaimer of Warranties. ELLIPTIC MARKETING PROVIDES ITS SERVICES (INCLUDING ANY ELLIPTIC MARKETING SOLUTION AND ANY ADVERTISING MATERIALS OR OTHER MATERIALS CREATED OR DEVELOPED BY ELLIPTIC MARKETING OR ITS LICENSORS OR SUPPLIERS) ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED PLACEMENT, DISTRIBUTION OR ACCESS, OR THAT ANY SERVICES OR ANY SERVERS AND SOFTWARE ARE ERROR-FREE OF FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT SECURITY PROCEDURES AND MECHANISMS WILL PREVENT THE LOSS, ALTERATION OF, OR IMPROPER ACCESS TO INFORMATION OR MATERIALS. IN THE EVENT OF INTERRUPTION OF ANY SERVICE, ELLIPTIC MARKETING’S SOLE OBLIGATION WILL BE TO RESTORE SUCH SERVICE AS SOON AS REASONABLY PRACTICABLE AND REPERFORM THE INTERRUPTED SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS ADVERTISER AGREEMENT, ELLIPTIC MARKETING HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION OR COMPATIBILITY, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, QUIET ENJOYMENT, AND NON-INFRINGEMENT.
8.Limitation on Liability. EXCEPT IN THE CASE OF ELLIPTIC MARKETING’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, ELLIPTIC MARKETING SHALL IN NO EVENT BE LIABLE UNDER THIS ADVERTISER AGREEMENT OR ANY IO(S), WHETHER IN TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT (INCLUDING INDEMNIFICATION), RESTITUTION, MISREPRESENTATION, OR OTHERWISE FOR ANY LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS ADVERTISER AGREEMENT INCLUDING ANY IO(S), EVEN IF ELLIPTIC MARKETING WAS ADVISED OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL ELLIPTIC MARKETING BE LIABLE TO THE ADVERTISER AND AGENCY AND ANY THIRD PARTIES (AS APPLICABLE) UNDER ANY IO FOR AN AMOUNT GREATER THAN THE AMOUNTS OF FEES ACTUALLY RECEIVED BY ELLIPTIC MARKETING UNDER SUCH IO DURING THE THREE MONTHS PRIOR TO THE INCIDENT THAT OCCURRED. THE PRECEDING SENTENCE WILL NOT AFFECT ANY RECOVERY THAT MAY BE AVAILABLE UNDER ANY APPLICABLE INSURANCE THEN CARRIED BY ELLIPTIC MARKETING (NET OF ANY OF RECOVERY AVAILABLE TO CLIENT UNDER ITS OWN INSURANCE POLICIES) AS MAY BE DETERMINED BY THE INSURANCE CARRIERS UNDER THE TERMS OF THE APPLICABLE POLICIES.
9.Term; Termination.(a) This Advertiser Agreement shall commence as of the date of the first IO with a Customer that has been accepted by Elliptic Marketing and continue until the last active IO, subject to any new IO that may be entered into by the parties incorporating these Elliptic Marketing T&Cs by express reference (the “Term“), unless terminated earlier in accordance with terms of this Advertiser Agreement.
(b) Notwithstanding the foregoing, Elliptic Marketing may terminate this Advertiser Agreement and/or any associated IOs in whole or in part: (i) by providing Advertiser with ten (10) days’ prior written notice; and (ii) immediately if Elliptic Marketing is no longer providing the Services specified in the IO. At any time prior to the commencement of performance under an IO, Advertiser or Agency may cancel such IO upon at least thirty (30) days’ prior written notice, without penalty. (For clarity and by way of example, if Advertiser or Agency cancels an IO twelve (12) days prior to commencement of performance, Advertiser will nonetheless be responsible for the first eighteen (18) days of the IO.)
(c) Either party may terminate any IO upon written notice if the other party breaches any of its material obligations hereunder and fails to cure such breach within thirty (30) days after receiving written notice describing the breach. For the avoidance of doubt, a breach of Advertiser’s payment obligations shall constitute a material breach of this Advertiser Agreement. Elliptic Marketing may, in lieu of terminating an IO and/or this Advertiser Agreement, suspend any of the Services being performed under an IO upon written notice to Customer if such Customer or another party, such as the Agency or Advertiser, materially breaches any term or condition of this Advertiser Agreement. Such suspension is without limitation of any other right or remedy of Elliptic Marketing arising out of the breach including termination. Notwithstanding the foregoing, Elliptic Marketing may terminate this Advertiser Agreement immediately with notice should Advertiser: (i) engage in illegal activity of any type; (ii) breach any IO or other agreement with Elliptic Marketing; (iii) be a party to a suit involving Elliptic Marketing; (iv) become insolvent; (v) make an assignment for the benefit of creditors; (vi) cease to do business as an ongoing concern; or (vii) file a petition or have a petition filed against it under any bankruptcy or insolvency laws.
(d) Upon expiration or any termination of this Advertiser Agreement and related IO(s), Advertiser and Agency will immediately cease all access to and use of Elliptic Marketing’s Services and each party shall promptly return all of the other party’s Confidential Information in its possession, provided that there is no obligation to return any Confidential Information retained electronically in the ordinary course provided such Confidential Information shall continue to be held confidential in accordance herewith. Termination of an IO does not relieve either party of any other obligations under such IO that accrued by the effective time of such termination or its obligations under the Advertiser Agreement or any other IO. Any provision which expressly or by its nature are to continue after termination or expiration, and all accrued payment obligations, shall survive expiration or termination of the IO. Notwithstanding anything to the contrary contained herein, this Advertiser Agreement shall continue in effect so long as there remains any active IO between Elliptic Marketing, on the one hand, and either the Advertiser or Agency, on the other hand.
10.Indemnification. (a) Each of Advertiser and any Agency (if any) agrees to indemnify, defend, and hold harmless Elliptic Marketing, any and all of its affiliated entities and its and their affiliates, directors, officers, employees, agents and representative for and from any claims, liabilities, damages, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of (i) the acts or omissions or breach of this Advertiser Agreement by the Advertiser or such Agency as applicable (including its respective representations and warranties herein), (ii) the content or subject matter of any Advertising Materials or Linked Offerings, or (iii) any violation of any applicable laws, rules, regulations, industry guidelines or policies, including relating to any end user or other data that it may collect or have collected in relation to the Ads placed according to the IO.
(b) Elliptic Marketing agrees to indemnify, defend, and hold harmless the Advertiser for any claims, liabilities, damages, losses, costs and expenses (including reasonable legal fees and disbursements) made against the Customer by a third party resulting from or arising out of any acts of gross negligence or willful misconduct by Elliptic Marketing.
(c) Agency (if any is listed in the IO) represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to the Advertiser Agreement including the IO, and that all of Agency’s actions related to this Advertiser Agreement will be within the scope of such agency, and Agency will defend, indemnify, and hold harmless Elliptic Marketing and any and all of its affiliated companies and its and their affiliates, directors, officers, employees, agents and representatives from claims, liabilities, damages, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of Agency’s alleged or actual breach of the foregoing sentence.
11.Relationships of Parties. The relationships of the parties shall be solely that of independent contractors, and nothing in this Advertiser Agreement or in the business or dealings between the parties shall be construed to make them joint venturers or partners with each other. Neither party shall do anything to suggest to third parties that the relationship between the parties is anything other than that of independent contractor. There are no third party beneficiaries to this Advertiser Agreement. Elliptic Marketing is not obligated to and shall not provide Advertiser with tax and/or legal advice. Elliptic Marketing undertakes no duty to investigate or research Advertiser’s tax status and/or obligations, and such research and investigation is the sole responsibility of Advertiser. Advertiser is obligated to independently assess and comply with all relevant tax and legal requirements, and Advertiser is responsible for its own sales tax collection and reporting obligations arising from sales made to end users. Customer acknowledges that Customer and its designated employees and other agents may receive (and may not opt-out of) communications from Elliptic Marketing about Elliptic Marketing and its products and services through any contact information provided thereby.
12.Publicity. Except to the extent necessary under applicable law, neither party shall publicly announce the relationship contemplated in this Advertiser Agreement, in a press release or other form of publicity, without the prior written approval of the other party. Notwithstanding the foregoing, Elliptic Marketing may include the Advertiser’s name in a published list of customers/partners or similar reference.
13.Notices. Except as provided elsewhere herein, both parties must send all notices relating to this Advertiser Agreement in writing via overnight mail, international express mail by an internationally recognized courier, or facsimile: (a) to Elliptic Marketing at Elliptic Marketing, LLC., Attn: Legal Department, 244 Biscayne Blvd. #2510. Miami, FL 33132; and (b) for Advertiser, at the address, email, or facsimile number listed on the IO. Notices shall be effective the earlier of the notified party’s actual receipt (or refusal to accept to receipt, if applicable), or five (5) days after the date of mailing.
14.Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including electrical outages, failure of Internet service providers, default due to Internet disruption, (including denial of service attacks), riots, insurrection, war (or similar), fires, flood, earthquakes, explosions, and other acts of nature.
15.Entire Agreement, etc.. This Advertiser Agreement contains the entire agreement and understanding of the parties and supersedes all prior agreements and understandings between the parties, whether oral or written, regarding the subject matter hereof. Neither party may assign this Advertiser Agreement without the other party’s prior express written consent, except that Elliptic Marketing may freely assign this Advertiser Agreement in any corporate reorganization or to any successor to the all or substantially all of the assets and business of Elliptic Marketing (whether by stock purchase, asset purchase, merger or at law or in equity) upon prior written notice to Advertiser. The words “hereby”, “herein”, “hereof”, “hereunder” and words of similar import refer to this Agreement as a whole and not merely to the specific section, paragraph or clause in which such word appears. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation” or “but not limited to.” If any provision of this Advertiser Agreement is held by any court of competent jurisdiction to be illegal, null or void, or against public policy, the remaining provisions of this Advertiser Agreement shall remain in full force and effect. The parties shall in good faith attempt to modify any invalidated provision to carry out the parties’ stated intentions. The waiver of any breach of any provision by any party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver. Each and any IO may be signed in counterpart.
16.Choice of Law/Attorneys’ Fees. This Advertiser Agreement shall be governed by the laws of the State of Florida without respect to choice of law rules and the parties hereby consent to exclusive jurisdiction and venue in the state and federal courts in Miami-Dade County, Florida for such purpose. The parties waive the personal service of any process upon them and agree that service may be affected by overnight mail, using a commercially recognized service, or by U.S. mail with delivery receipt to the address stated in this Advertiser Agreement. Elliptic Marketing shall be entitled to recover all reasonable costs of collection, including attorneys’ fees, in-house counsel costs, expenses and costs, incurred in attempting to collect payment from Advertiser.