Revised: May 30th, 2016
These Terms and Conditions (the “Terms and Conditions”) are entered into between AcuityAds Inc. (“Acuity”), an Ontario corporation with offices at 181 Bay Street, Suite 320, Toronto, Ontario, M5J 2T3 and the entity specified in the applicable Insertion Order (the “IO”, and together with the Terms and Conditions, the “Agreement”) with offices at the address specified in the IO. Acuity reserves the right to update and change these Terms and Conditions from time to time without notice to Advertiser.
For the purposes of this Agreement, the following terms are defined as follows:
1.1 “Ad” means any advertisement (including, without limitation, all logos, trademarks, creative materials, graphic images and copy therein) provided to Acuity, directly or indirectly, by Advertiser, including without limitation banner advertisements, text advertisements and video advertisements (as such terms are understood in the online advertising industry) and advertisements received from Contracted Clients.
1.2 “Ad Exchange” shall mean any exchange where Ad Inventory can be purchased can be purchased through an Auction.
1.3 “Ad Inventory” shall mean any digital advertising inventory made available for sale through an Ad Exchange, including, but not limited to, web display, mobile, application and/or widget-based advertising inventory.
1.4 “Advertiser” shall mean the Advertiser set forth in the IO and shall, for purposes of Advertiser’s obligations under these Terms and Conditions, include any Contracted Client. The obligations of Advertiser and a Contracted Client under this Agreement shall be joint and several.
1.5 “Auction” means the real-time bidding process for Ad Inventory offered through Ad Exchanges.
1.6 “Campaign” means the advertisement campaign to be operated by Advertiser through the Platform.
1.7 “Platform” means the advertising machine learning advertising platform developed and owned by Acuity.
For clarity, all capitalized terms used in these Terms and Conditions but not otherwise defined herein shall have the meaning ascribed to them in the IO.
2.1 Acuity hereby grants to Advertiser a non-exclusive, non-transferable license to use the Platform for purposes of conducting Campaigns during the Term in accordance with this Agreement. As between Advertiser and Acuity, Advertiser acknowledges that Acuity is the owner of all intellectual property rights in and to the Platform including all content thereon (other than the Ads) and, except as otherwise expressly permitted by this Agreement, Advertiser shall not at any time do or suffer to be done any act or thing that will in any way impair the rights of Acuity in and to the Platform. Nothing in this Agreement grants, nor shall Advertiser acquire hereby, any right, title or interest in or to the Platform or any goodwill associated with the Platform, other than those rights expressly granted hereunder. Upon the termination of this Agreement for any reason, all rights in the Platform granted to Advertiser hereunder shall automatically revert to Acuity, and Advertiser shall have no further rights in the Platform.
2.2 Acuity will provide Platform and sales training as well as support over the phone and WebEx as needed by Advertiser. An aggregate of thirty (30) hours of such training and support will be provided to Advertiser during any twelve consecutive months at no additional charge. If Advertiser requests more than 30 hours of training and support, Advertiser will pay Acuity for consulting services at a rate of one-hundred dollars ($100) net per hour. If Advertiser requests in person training, Advertiser will reimburse Acuity for all reasonable out of pocket expenses.
Advertiser’s use of the Platform shall at all times comply with all applicable laws, rules, regulations and ordinances as well as any written policies or procedures that Acuity may provide to Advertiser from time to time in connection with Advertiser’s use of the Platform. Acuity reserves the right to monitor the Platform and Advertiser’s use of the Platform from time to time in its sole discretion.
3. SALES AGENCY
Subject to the terms and conditions of this Agreement, Acuity hereby grants Advertiser the limited, non-transferrable right (the “Selling Rights”) to act as the sales representative for the Platform (the “Sales Agency Services”) and to provide advertising services to third parties through the Platform (“Advertiser Services”). Exercise of these rights entitle Advertiser:
a) to advertise the existence of the Platform and the Advertiser Services;
b) to enter into and execute agreements (in such form as Acuity may approve from time to time) in respect of the Advertiser Services (the “Advertiser Agreements”). For purposes of this Agreement, upon entering into an Advertiser Agreement, a third party shall be a “Contracted Client”;
c) to process all payments from Contracted Clients received in connection with the Advertiser Services (the “Payment Processing”);
d) to carry out such other duties and obligations as are specifically authorized by this Agreement.
Exercise of the Selling Rights shall be at Advertiser’s sole cost and expense and shall require Advertiser to provide to Acuity such content and information about the Contracted Client and the Advertiser Services to be provided to such Contracted Client, as Acuity may request.
For the avoidance of doubt, Advertiser shall not permit any Contracted Client to directly use or access the Platform without the written consent of Acuity. Rather, Advertiser shall only have the right to use the Platform on behalf of, and for the Contracted Client’s benefit.
Advertiser shall submit to Acuity for review any and all advertisements and/or marketing materials (collectively, “Marketing Materials”) to be used by Advertiser in connection with the Sales Agency Services and Advertiser Services. Acuity shall have the right to approve or reject the Marketing Materials in its sole discretion. Advertiser shall not make any representations, warranties, statements or claims about the Platform, except as approved by Acuity in its sole discretion.
4. ADVERTISER OBLIGATIONS
Advertiser hereby grants to Acuity a worldwide, royalty free, sub-licensable, non-exclusive right and license to use, distribute, reproduce, publicly and digitally display and perform, transmit and broadcast (collectively, “Use”) the Ads (and any trademarks, trade names, service marks, copyrights, URLs or other proprietary rights of Advertiser therein) in connection with the Campaign.
Advertiser represents and warrants to Acuity that each Ad (and any and all content therein) and the distribution thereof in accordance with this Agreement:
a) complies, as applicable, with the Interactive Advertising Bureau (“IAB”) Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (US), and/or the IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less and Late Creative Policy (Canada);
b) does not infringe the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;
c) does not violate any applicable law, statute, ordinance or regulation regarding the creation and marketing of online materials including, without limitation, those governing false and/or deceptive advertising;
d) is true, accurate and complete;
e) is not unlawful, defamatory or libelous;
f) is not pornographic or obscene; and
g) does not contain viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines.
Advertiser further represents and warrants that:
a) Prior to delivery to Acuity, Advertiser will have obtained all consents, releases, waivers and rights (including, without limitation, all rights in copyright, moral rights, trade-mark and trade name rights and other intellectual property rights) necessary for the grant to Acuity, and exploitation by Acuity, of the rights and licenses granted to Acuity in the Ads pursuant to this Agreement; Acuity reserves, in its sole discretion, the right (but not the obligation) to: (i) review any Ads used by Advertiser through the Platform prior to Use; and/or (ii) to reject or refuse to serve any Ad that is, in its sole discretion, objectionable or which may expose Acuity, its suppliers and each of their affiliates, or its other clients to any harm or liability of any type.
b) Advertiser has paid, or will have paid prior to use thereof, to the proper person, firm or corporation when due and payable, all residual, re-use or similar payments, all step-up fees, all music synchronization fees or royalties, all mechanical reproduction fees or royalties, all performance rights fees or royalties and all license payments and all other amounts payable to third parties as a result of, or in connection with, the Use of the Ads hereunder.
c) Advertiser represents and warrants that it is in compliance with the Digital Advertising Alliance’s (“DAA”) Self-Regulatory Principles for Online Behavioral Advertising (“DAA OBA Principles”) and the Canadian Self-Regulatory Principles for Online Behavioural Advertising (“DAAC OBA Principles”), including the provision of appropriate notice and choice of online behavioral advertising. Advertiser represents and warrants that any websites where data is collected for online behavioral advertising provides users notice that third parties will collect data for purposes of serving targeted ads and provide a link to a means by which users may opt out of such targeted ads, such as www.aboutads.info or www.youradchoices.ca.
5. BILLING TYPE
Advertiser agrees that it shall pay to Acuity all amounts owing to Acuity in accordance with the Billing Type selected by Advertiser in the Platform for a Campaign, and subject to the Monthly Minimum Commitment (as set forth in the IO), if any. For purposes of this Agreement:
“Dynamic Campaign” means that Acuity will invoice Advertiser on a monthly basis for all Ad Inventory purchased by Advertiser pursuant to a Campaign, plus a percentage as set forth in the Platform.
“Fixed CPM Campaign” – means that Acuity will invoice Advertiser on a monthly basis for the total number of impressions (per thousand) delivered pursuant to a Campaign at the rate for such impressions set forth by the Advertiser on the Platform.
Acuity Ads Inc. will invoice Advertiser monthly. Unless otherwise stated in the IO, Advertiser shall remit payment to the Acuity within thirty (30) days of receipt of the applicable invoice. All late payments shall bear interest at the rate of 2% per month, or the highest rate allowable by law, whichever is lower. Advertiser agrees that it shall be solely liable for payment to Acuity of all amounts owing pursuant to the terms hereof, and (if Advertiser is an agency or intermediary) it shall make all necessary payments hereunder, notwithstanding any non-payment to Advertiser by any third party.
In the event of default relating to the payment of any invoice, Acuity shall have the right, without penalty or liability, to discontinue the performance of the Services. Furthermore, Advertiser agrees to pay all costs incurred by Acuity in collecting any delinquent payments, including, but not limited to, collection agency and attorneys’ fees and costs.
The term of this Agreement shall be as stated in the IO, unless earlier terminated by either party in accordance with the terms hereof.
Either party may terminate this Agreement upon 30 days written notice.
This Agreement may be terminated immediately by either party if any of the following events occur:
a) subject to Section 8(b), the other party materially breaches or materially fails to perform any of its obligations under this Agreement, and such breach or failure to perform remains unremedied (if capable of being remedied) for a period of thirty (30) days after the other party has been given written notice thereof;
b) the other party is in breach or default of any of its payment obligations under this Agreement and such breach or default remains unremedied for a period of seven (7) days after the other party has been given written notice thereof; or
c) the other party becomes bankrupt, insolvent, makes a composition or arrangement with its creditors, has a receiver, administrator, administrative receiver or other encumbrance take possession of or control over any substantial part of its assets, or otherwise undergoes any event analogous to any event referred to above in any jurisdiction.
d) For low activity as described herein: If Advertiser’s monthly spend is less than ten-thousand ($10,000) net per month for 3 consecutive months, Acuity reserves the right to terminate the Agreement for low activity, without liability for such termination. Notwithstanding the foregoing, Advertiser remains responsible and liable for payments outstanding upon termination.
Upon termination of this Agreement and subject to Section 26: (i) Advertiser shall immediately discontinue use of the Platform, and all rights granted by Acuity to Advertiser under this Agreement shall cease; (ii) Advertiser shall promptly pay to Acuity all amounts properly due and owing to Acuity hereunder.
If at any time Acuity for any reason decides to cease licensing the Platform to third parties for any reason, Acuity may cancel this Agreement by providing not less than thirty (30) days’ notice to Advertiser. If Advertiser has pre-paid any funds, Acuity shall, without further liability to Advertiser, refund to Advertiser unspent portion of such funds, less any fees properly due and owing to Acuity.
9. DISCLAIMER OF WARRANTIES
THE PLATFORM AND ANY SERVICES PROVIDED BY ACUITY HEREUNDER (“SERVICES”) ARE PROVIDED “AS IS” AND ACUITY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED, STATUTORY OR IMPLIED, REGARDING THE SERVICES, THE PLATFORM OR ANY PORTIONS THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHER IMPLIED WARRANTIES ARISING IN THE COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ACUITY SPECIFICALLY DISCLAIMS, AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING: (1) THE NUMBER OF PERSONS WHO WILL VIEW OR ACCESS THE ADS; (2) ANY BENEFIT ADVERTISER OR ANY CONTRACTED CLIENT MIGHT OBTAIN FROM THE PLATFORM, THE SERVICES OR A CAMPAIGN; (3) THAT THE PLATFORM OR THE SERVICES WILL INCREASE SALES, GOODWILL OR ACHIEVE A SPECIFIC RESULT; OR (4) THAT THE MEASURABLE GOALS WILL BE ACHIEVED OR ACHIEVED WITHIN THE BUDGET. ACUITY DOES NOT WARRANT: (A) THAT THE PLATFORM OR THE SERVICES WILL BE AVAILABLE AT ALL TIMES OR ANY GIVEN TIME, OR FROM ANY PARTICULAR LOCATION; (B) WILL BE SECURE OR ERROR-FREE; (C) THAT DEFECTS WILL BE CORRECTED; OR (D) THAT THE SERVICES AND/OR THE PLATFORM ARE FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ACUITY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
ADVERTISER FURTHER ACKNOWLEDGES AND AGREES: (1) THAT THE USE OF THE PLATFORM AND PERFORMANCE OF THE SERVICES ARE CONTINGENT UPON SUCCESSFUL PERFORMANCE AND OPERATION OF THE INTERNET, AD EXCHANGES AND AUCTIONS AND, ACCORDINGLY, ACUITY SHALL NOT BE RESPONSIBLE FOR ANY FAILURES, DELAYS OR DAMAGES CAUSED BY THE MALFUNCTIONING OR DEFAULT OF SAME THAT ARE REASONABLY BEYOND THE CONTROL OF ACUITY; AND (2) ALL NUMBERS AND AMOUNTS CONTAINED IN THE IO RELATING TO IMPRESSIONS, ACTIONS, ACQUISITIONS OR APPLICATIONS ARE ESTIMATES ONLY AND ARE NOT GUARANTEED BY ACUITY. ACUITY SHALL FOLLOW A UNIFORM POLICY TO AVOID DISCRIMINATION IN ITS DEALINGS WITH ADVERTISERS AND AGENCIES. ALTHOUGH ACUITY MAKES EVERY EFFORT TO UPHOLD THE HIGHEST STANDARDS OF ONLINE MARKETING CONDUCT, IT WILL NOT BE LIABLE TO ADVERTISER FOR ANY LOSSES OR DAMAGES INCURRED BY ADVERTISER OR A CONTRACTED CLIENT AS A RESULT OF ADVERTISER’S OR A CONTRACTED CLIENT’S ACTIONS OR OMISSIONS.
10. LIMITATIONS ON LIABILITY
NEITHER ACUITY NOR ITS AFFILIATES WILL BE LIABLE TO ADVERTISER OR ANY THIRD PARTY, UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF INFORMATION OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH IN THIS PARAGRAPH ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ADVERTISER AND ACUITY. THE RIGHTS AND LICENSES GRANTED BY ACUITY HEREUNDER WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ACUITY’S MAXIMUM AGGREGATE LIABILITY TO ADVERTISER OR ITS CONTRACTED CLIENTS FOR ANY CAUSES OF ACTION WHATSOEVER, AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, WILL BE THE GREATER OF: (i) ONE HUNDRED DOLLARS ($100.00); OR (ii) TWENTY-FIVE PERCENT OF THE NET REVENUE EARNED BY ACUITY UNDER THIS AGREEMENT IN THE YEAR PRIOR TO THE EVENT GIVING RISE TO CLAIM OR CAUSE OF ACTION. FOR THE AVOIDANCE OF DOUBT, “NET REVENUE” MEANS THE AMOUNT ACTUALLY RECEIVED BY ACUITY PURSUANT TO THIS AGREEMENT, LESS ANY AMOUNTS PAID BY ACUITY FOR AD INVENTORY IN CONNECTION WITH SUCH REVENUE.
Advertiser acknowledges and agrees that all software, technology, know-how, information, data, content, and other property provided, created, developed or licensed by Acuity in connection with the Platform (collectively, “Intellectual Property”) is confidential and proprietary to Acuity. Advertiser agrees that it shall not, and shall not permit a third party, during the Term of this Agreement or thereafter, directly or indirectly, to: (i) copy, alter, decompile, translate, disassemble, modify, reverse-compile, reverse engineer, redistribute, make any derivative use of, furnish, distribute, rent, sell, lease, lend, sublicense, give or otherwise transfer, permit access to or disclose the Intellectual Property, or any part thereof, or any interest therein, in any form to any other firm, person or entity without the express written consent of Acuity; (ii) use the Intellectual Property: (A) for any illegal purpose or in a manner that violates any applicable law or regulation; or (B) in a manner that infringes the rights of any third party, including without limitation, intellectual property, privacy, publicity or contractual rights.
Advertiser acknowledges and agrees that all proprietary rights in the Intellectual Property provided or otherwise utilized in connection with this Agreement are and shall remain the property of Acuity and Advertiser shall have no right or interest in the Intellectual Property other than as expressly set forth in this Agreement and that this Agreement shall not be construed as granting Advertiser any right or license, whether by implication, estoppel or otherwise, not expressly set forth in this Agreement. This Agreement does not transfer ownership rights of any description in the Intellectual Property to Advertiser or to any other third party.
12. PUBLICITY AND CONTENT DISTRIBUTION
Advertiser agrees that part of the consideration being provided to Acuity pursuant to this Agreement is the right for Acuity to cite Advertiser from time to time on the Acuity website, in presentations, speeches, press release and other media as a client of Acuity.
As used herein, “Confidential Information” shall mean: (a) either party’s proprietary information; (b) information marked or designated by either party as confidential; (c) suppression lists disclosed between the parties pursuant to this Agreement; (d) information otherwise disclosed by either party in a manner consistent with its confidential nature; (e) the terms and conditions of this Agreement, including pricing information; and (f) either party’s information that is conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential. The parties acknowledge that, as a result of the provision of the Services, one party may disclose Confidential Information (“Disclosing Party”) to the other party (“Receiving Party”). Therefore, the Receiving Party agrees that it will make no use (expect solely for purposes of this Agreement) or disclosure of the Disclosing Party’s Confidential Information without obtaining the Disclosing Party’s prior written consent. Additionally, the Receiving Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s) and/or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) shall be explicitly bound confidentiality obligations no less restrictive than as set forth herein, and will use reasonable care, but not less care than they use with respect to their own information of like character, to prevent disclosure of any Confidential Information. Nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in, or making any representations or warranties in respect of, any Confidential Information disclosed under this Agreement (and each Party’s reliance on such Confidential Information is at its sole risk and responsibility.) This Section 13 shall survive any termination of this Agreement for a period of three (3) years thereafter. The Receiving Party agrees that monetary damages for breach of confidentiality under this Section 13 may not be adequate and that the Disclosing Party shall be further entitled to seek injunctive relief. Notwithstanding anything contained herein to the contrary, confidentiality provisions shall not apply where the Receiving Party can demonstrate with clear evidence that the information: (a) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of the Receiving Party; (c) was rightfully received by the Receiving Party from a third party who was not bound under any confidentiality provisions; or (d) was disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
Advertiser agrees to indemnify, defend and hold harmless Acuity, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys’ fees) asserted by any third party due to, arising from, or in connection with: (i) any Ad supplied or used by Advertiser hereunder; (ii) any act or omission of any Contracted Client, (iii) any breach by Advertiser of the terms of this Agreement including, without limitation, any representation or warranty contained herein; or (iv) the negligence, willful misconduct or fraudulent activities of Advertiser.
During the Term of this Agreement and for a period of one (1) year following the termination of this Agreement, Advertiser shall not solicit, seek out or employ, either directly or indirectly (as a consultant, independent contractor or otherwise) any employee or consultant engaged by Acuity who is or was associated with the performance of Acuity’s obligations pursuant to this Agreement, except without the prior written consent of Acuity. Notwithstanding the foregoing, the hiring of employees who respond to a generally advertised job opening shall not be considered a solicitation as contemplated by this clause.
All references in this Agreement to dollars, unless otherwise specifically indicated, are expressed in US dollars if Advertiser’s registered office is in the US, and in Canadian dollars if Advertiser’s registered office is in Canada.
17. GOVERNING LAW/JURISDICTION
Any dispute arising from or related to this Agreement will be governed by the laws of the Province of Ontario without regard to conflict of law principles. Subject to Section 18, below, the exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement will be the Courts of the Province of Ontario located in Toronto, Ontario, Canada and each of the parties hereto irrevocably waives any objection to jurisdiction and venue in such courts.
18. DISPUTE RESOLUTION
Any dispute regarding this Agreement, including the validity, existence, binding effect, interpretation, performance, breach or termination, and including tort claims, shall be referred to and finally determined, to the exclusion of the courts, by a single arbitrator. The arbitration shall take place in Toronto, Ontario, in English, and in accordance with the National Arbitration Rules of the National Arbitration Institute of Canada, Inc. In all other respects the arbitration shall be governed by and subject to the Ontario Arbitration Act.
UNLESS OTHERWISE REQUIRED BY LAW, ADVERTISER MUST NOTIFY ACUITY WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR ADVERTISER WAIVES THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENT, FACTS OR DISPUTE.
19. WAIVER OF CLASS ACTIONS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL PARTIES TO ANY ACTION ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT MUST BE INDIVIDUALLY NAMED. ADVERTISER HEREBY WAIVES ANY RIGHT IT MAY HAVE FOR ANY DISPUTE PERTAINING TO THE SERVICES OR THIS AGREEMENT TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS, OR ON BASIS INVOLVING DISPUTES BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC.
Advertiser may not assign this Agreement without prior written consent from Acuity, which consent shall not be unreasonably withheld or delayed. Acuity may assign all or any portion of its duties and obligations hereunder to any affiliate, successor-in-interest and/or acquirer of all or substantially all of Acuity’s assets. Subject to the foregoing, the terms of this Agreement will be fully binding upon, inure to the benefit of and be enforceable by, the parties’ respective successors, heirs, executors, administrators and permitted assigns.
Any term or provision of this Agreement that is invalid or unenforceable in any situation or in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
22. SECTION REFERENCES
The section and subsection headings used in this Agreement are for reference and convenience only, and shall not affect in any way the meaning or interpretation of the Agreement. The IO, including all approved amendments, are incorporated into and a part of this Agreement.
The failure of Acuity to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable.
24. RELATIONSHIP OF THE PARTIES
The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employer-employee relationship is intended or created hereby. Notwithstanding Section 1.3, if Advertiser is entering into this Agreement on behalf of a third party, such third party shall have not have any rights under this Agreement.
25. FORCE MAJEURE
Neither Acuity nor any of its suppliers shall be liable to Advertiser for any delay in performance or failure to perform caused directly or indirectly by fire, explosion, accident, flood, labor trouble, weather condition, any regulation, rule or act of any government or governmental agency, or the inability to obtain or shortage of suitable material, components, parts, equipment, machinery, fuel, power, communication facilities or transportation, act of God, armed conflicts, civil commotion or any other cause of like character beyond the reasonable control of Acuity or any of its suppliers.
If Acuity terminates this Agreement for any reason, all rights and obligations under this Agreement shall cease, save for Advertiser’s obligation to pay all fees property due and owing to Acuity hereunder to the date of termination. In addition, the following Sections: 9 – 15, 17 – 20 and 26 and such other provisions hereof of thereof which expressly, or by their nature are intended to, survive termination.
27. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter of this Agreement. This Agreement is non-exclusive to Acuity and Acuity shall have the right to enter into similar agreements with other third parties. The parties hereby represent and warrant that they shall at all times fully comply with all applicable state and federal statutes, rules and regulations with respect to their respective businesses including, without limitation laws governing deceptive trade practices.
Advertiser shall promptly notify Acuity in the event it: (i) becomes subject to any bankruptcy or insolvency proceedings; (ii) has a dispute with Acuity; or (iii) otherwise is required to provide notice to Acuity hereunder. Advertiser shall deliver any and all notices required to be delivered to Acuity hereunder by Mail Notification (as defined below) to the address set forth above, Attn: Accounting. Advertiser hereby acknowledges and agrees that Acuity may deliver any notice required to be delivered to Advertiser either by means of posting such notice to Acuity’s website located at www.acuityads.com (“Web Notification”) by email to the email address of Advertiser indicated in the IO (“Email Notification”), or by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of Advertiser (“Mail Notification”). Any such notification shall be deemed effective: (i) in the event of Web Notification, on the earlier of the date the Advertiser next visits Acuity’s website or thirty (30) days from the date such Web Notification is posted on Acuity’s website; (ii) upon transmission when delivered by Email Notification; or (iii) when delivered by Mail Notification.