Thank You for choosing Vertical Search Works as Your preferred online advertising provider. By clicking completing the registration process or by engaging with any of the services herein described, You agree to the following Terms and Conditions (hereinafter the “Agreement”).
The term “Vertical Search Works” or “VSW” refers to Vertical Search Works, Inc., a corporation organized under the laws of Delaware, with an office at 336 West 37th Street, Suite 100, New York, NY 10018.
The term “Advertiser” or “Client” or “You” refers to the recipient of the services herein described.
For the purposes of this Agreement:
a) “Publisher” means any entity or person with whom VSW contracts to deliver online advertising.
b) “Publisher Site” means any medium whereupon VSW contracts to deliver online advertising.
c) “Ads” or “Advertisements” means each VSW FeatureLink™ advertisement which may contain a product/service image, logo and/or video and marketing copy, message and/or summary.
d) “Campaign” means a set of one or more Advertisements sharing a common budget, pricing model, and geographical target. Each Campaign shall be structured under either a CPC or CPM pricing model, as defined herein.
e) “Advertising Service” means the placement of Your Advertisements on Publisher Sites as described herein.
f) “FeatureLink™ Portal” means the online access VSW makes available to Clients for the purpose of, among other things, monitoring the services herein described.
g) “Visitor” means any person viewing any online Advertisement delivered by VSW.
h) “Landing Page” means the URI an Advertisement directs a Visitor to upon the visitor clicking on the Advertisement.
i) “Impression” means each occurrence of Your Advertisement being displayed on a Publisher Site.
j) “Click” means any time a Visitor clicks on any Advertisement associated with Your account, and is redirected to the Landing Page associated with said Advertisement.
k) “Cost per Click” or “CPC” means the amount You are responsible to pay VSW each time a Visitor clicks on any Advertisement under any CPC Campaign, said amount being available to view via FeatureLink™ Portal.
l) “Cost per Mille” or “CPM” means the amount You are obligated to pay VSW for each 1,000 impressions Your Advertisements receive under any CPM Campaign.
m) “Insertion Order” or “IO” or “Placement Order” means the CPM, target number of impressions, Vertical or Verticals, Advertisements, monthly budget, and automatic renewal provisions governing any CPM campaign, as indicated on the VSW FeatureLink™ Portal.
n) “Billable Event” means any event resulting in a charge to You, i.e., a Click under a CPC Campaign or an Impression under a CPM Campaign.
- o) “Applicable Law” means all controlling applicable federal, state and local statutes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final, non-appealable judicial opinions.
As used in this Agreement: (a) words in the singular shall mean and include the plural and vice versa; and (b) the word “may” gives sole discretion without any obligation to take any action. The headings, formatting, and various typefaces utilized in this Agreement shall serve to provide clarification only, and shall not operate to any direct effect.
4. Description of Service
You agree to appoint VSW as Your non-exclusive representative to perform certain marketing and promotional activities on Your behalf. Subject to the provisions herein contained, VSW shall place Advertisements for Your products and services on Publisher Sites.
VSW provides advertising services under two distinct models: CPC and CPM. You may engage the services herein described under either or both of these pricing models, but each Campaign may only operate under a single pricing model.
A CPM Campaign is a purchase of aggregate Impressions. Any CPM placement shall be accomplished by executing an Insertion Order specifying number of impressions, CPM, duration, and Vertical or Verticals. Said Insertion Orders shall not be interrupted during the applicable period of effectiveness except to make changes, updates, or corrections to Advertisements.
A CPC Campaign is a campaign in which Your Advertisements are given unlimited Impressions and You are obligated to pay for Clicks received according to the CPC described on the FeatureLink™ Portal.
5. Cooperation; Placement; Quality Control
You agree to submit images, text, and other advertising materials in accordance with VSW’s submission policies, which may change from time to time. You agree to provide such assistance reasonably required by VSW for the design, build, and maintenance of any Advertisement, including, but not limited to: (a) delivering in a timely manner the product message to be included in the Advertisement, in a form reasonably required by VSW; (b) providing, as appropriate, access to, and the cooperation of, relevant members of Your organization, including, but not limited to, members responsible for billing and operational decision making; (c) taking such reasonable steps to ensure that electronic communication from VSW is uninterrupted, including, but not limited to, adding relevant VSW domains to Your list of trusted email domains and creating relevant exceptions to Your junk email policies; (d) reviewing the Advertisement prior to the date on which such Advertisement is scheduled to be delivered; and (e) notifying VSW within forty-eight (48) hours of being provided with access to the Advertisement of any changes required to be made. Failure to notify VSW of any requested changes to an Advertisement within this time frame shall constitute acceptance of the Advertisement, and such Advertisement shall be eligible for placement and shall incur charges payable by You for any Billable Event.
Notwithstanding the foregoing, You agree that any Advertisement You create shall be immediately eligible for placement, and You will be charged for any Billable Event this Advertisement triggers. You additionally agree that any Advertisement created for You during the course of any demonstration, registration, production meeting, or operations meeting shall be immediately eligible for placement, and You will be charged for any Billable Event triggered by this Advertisement.
VSW shall exercise sole discretion in placing Advertisements. VSW may remove, modify, or reject from any Publisher Site any Advertisement which, in the sole reasonable judgment of VSW, does not comply with VSW’s or any Publisher’s policies, or otherwise does not comply with any law, regulation, or other judicial or administrative order, or in advancement of any legitimate business purpose.
You are responsible for supplying all relevant information, images, marketing messages, and product information necessary to construct Your Advertisements. Advertisements shall only be designed according to VSW specifications, which may change from time to time.
6. Performance; Reporting
VSW shall provide certain data with respect to the services performed under this Agreement, including, but not limited to, data describing the performance, delivery, and other metrics in connection with the services herein described. You agree and acknowledge that VSW is the sole Party having authority to provide said data, and that Your obligations for payment hereunder are calculated exclusively pursuant to said data.
7. Written Notice
All notices under or related to this Agreement shall be in writing and shall reference this Agreement. Notice shall be deemed given when (a) delivered personally; (b) sent by telecopy or other electronic medium; (c) upon delivery by registered or certified mail, return receipt requested; or (d) one (1) day after deposit with a commercial overnight carrier, with verification of receipt. All communications shall be sent to the addresses first set forth above, or such other addresses designated pursuant to this Section or course of business.
8. No Agency; Third Party Rights
Nothing in this Agreement shall be construed to place the Parties hereto in an agency, employment, franchise, joint venture, or partnership relationship. Except as provided herein, neither Party shall have the authority to obligate or bind the other in any manner. Nothing herein contained shall give rise to, or is intended to give rise to, any rights of any kind to any third parties.
9. Fees; Payments; Credits
A. CPC Campaigns. With respect to any CPC Campaign:
You agree to pay VSW the amount equal to the total number of clicks Your Advertisements receive multiplied by the CPC.
Each CPC Campaign shall be assigned a monthly budget. Said budget shall be displayed on the FeatureLink™ Portal. You acknowledge that Your total monthly budget is equal to the sum of each individual CPC Campaign budget. A monthly budget shall apply to a single calendar month and shall reset on the first (1st) day of each calendar month.
B. CPM Campaigns. With respect to any CPM Campaign:
You agree to pay VSW for Advertising Services as described by the Insertion Order for the duration of the term described therein. During said term, You may not pause, cancel, or delete advertisements. Unless otherwise provided, You may prevent campaign renewal at any point prior to the campaign renewal date as indicated on the FeatureLink™ Portal. In the event that any of the terms contained within the Insertion Order conflict with the terms contained herein, the conflicting term contained within the Insertion Order shall carry. In the event of under-delivery, You shall only be responsible for payment of a pro-rated share of the total Insertion Order value.
C. All Campaigns.
Payment shall be made by credit card in United States Dollars. Except as otherwise provided, Payment shall be due and payable weekly, on the Monday following each week wherein any of Your Advertisements triggers any Billable Event, or any outstanding balance exists on Your account. Notwithstanding the foregoing, Your entire outstanding balance shall become due immediately upon cancellation or termination of service.
You hereby authorize VSW to set up recurring credit card billing for all Advertising Services provided, to wit: VSW shall automatically charge Your credit card on a recurring weekly basis in accordance with the foregoing paragraph. If payment is declined for any reason: (a) a fee of 5% of all outstanding charges shall be added to the balance due; and (b) VSW may continue to attempt to charge Your credit card on a recurring weekly basis until Your balance is paid in full. At its sole discretion, VSW may require payment in advance. VSW shall notify You by email each time a charge against Your credit card is attempted.
You must notify VSW in writing of any payment dispute within five (5) business days, commencing on the day the disputed payment is originally due. To the fullest extent provided by law, failure to provide timely notice of any payment dispute shall constitute waiver of any right to remedy.
VSW shall exercise absolute discretion in resolving any payment dispute. Any refund shall be in the form of advertising credit. Said advertising credit shall expire upon sixty (60) days of account inactivity.
10. Intellectual Property
You grant to VSW a limited, nonexclusive license to use, copy, modify, and display any image, video, animated image, audio, text, trademark, or any other communicable expression used in the production or planning of any Advertisement, for the services described herein.
Neither Party may assign, directly or indirectly, all or part of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, except that the provisions of this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, and their respective successors and assigns. Notwithstanding the foregoing, either Party may assign this Agreement in whole without such consent to any person or entity controlling, controlled by, or controlled in conjunction with such Party or that acquires all or substantially all of the assets and business of the assigning Party by merger or purchase, provided that such person or entity assumes in writing all of the terms and conditions of this Agreement. Any attempt by either Party to assign or transfer any of the rights, duties, or obligations of this Agreement in violation of the foregoing shall be void.
12. Term & Termination
This Agreement shall commence upon the date of full execution, or, in the event this Agreement is accepted electronically, this Agreement shall commence upon the date You complete the electronic registration process. This Agreement shall continue in effect until terminated as described herein.
Either Party may terminate this Agreement for any reason upon written notice, effective one (1) business day following receipt. Upon termination of this Agreement, (a) You continue to be bound by Your obligations for payment herein described; and (b) any outstanding Insertion Orders shall remain effective until expiration by the terms therein contained.
VSW, at its sole discretion, may supplement, amend, or modify this Agreement at any time upon 24 hours written notice.
14. Warranties; Representations; Disclaimer
You warrant, represent, and covenant that: (a) You are the sole and exclusive owner of all right, title, and interest in and to any intellectual property You provide under this Agreement, or that You are authorized or licensed to use and assign title to any intellectual property You provide under this Agreement; (b) none of the intellectual property You supply hereunder contains data that is unlawful, harmful, threatening, abusive, harassing, defamatory, obscene, libelous, invasive of another’s privacy, racially or ethnically offensive, or hateful; (c) You shall or have already posted on Your website privacy policies which comply with applicable laws and regulations and You shall adhere to said privacy policies; and (d) You shall comply with all applicable laws, regulations, and codes relevant to performance under this Agreement.
You acknowledge and accept that VSW does not warrant that the whole or any part of any Ads produced pursuant to this Agreement shall be continuously available. VSW shall not be responsible for interruption of, or delay in transportation, unavailability of, interruption of, or delay in telecommunications, or third party services, or outages resulting from extraneous or general internet conditions. Except as expressly set forth herein, each party provides its services “as-is”, and disclaims any and all warranties. You acknowledge that VSW does not warrant that the Advertising Service shall be provided in an uninterrupted or error free fashion at all times. Without limiting any of the foregoing, neither party makes any express or implied guarantees, representations, or warranties with respect to the revenue to be generated or placement of ads under this Agreement, nor any implied warranties of title, non-infringement, merchantability, or fitness for any particular purpose.
15. Limitation of Liability
Except as otherwise provided herein, neither party shall be liable to the other for any indirect, special, incidental, consequential, or punitive damages, including, without limitation, damages for loss of good will, lost profits, lost sales or business, work stoppage, computer failure or malfunction, lost data, or any other damages or losses, even if the Party claiming a loss has notified the other Party of the possibility of such loss. Except as otherwise provided herein, neither party shall be liable to the other for any amount exceeding the total amount invoiced hereunder for the three (3) month period immediately preceding the time of any claim.
You agree to defend, indemnify, save, and hold harmless VSW, its associated entities, and each of its officers, directors, employees, representatives, and agents, from and against any and all liability, claims, causes of action, judgments, suits, losses, damages, and expenses, and You shall represent each of the foregoing in connection with, arising directly or indirectly out of any third party claims arising form a breach by You of Your obligations, representations, warranties, and/or undertakings under this Agreement. You agree to promptly notify VSW in writing of any such third party claim for which indemnification shall be sought hereunder. VSW shall provide reasonable cooperation to You, at Your expense, in connection with the defense and settlement of any such claim. VSW may participate in any such actions at its own expense. Notwithstanding the foregoing, You agree not to settle or acquiesce to any judgment which may adversely affect VSW’s rights or interests without prior written consent of VSW, which shall not be unreasonably withheld.
17. Governing Law; Severability
This Agreement shall be governed by federal law and the laws of the State of New York. All rights and obligations contained in this Agreement are subject to any requirements and limitations of Applicable Law. Applicable Law might explicitly or implicitly allow the Parties to agree by contract or it might be silent, but such silence shall not be construed as a prohibition against agreement by contract. In the event that any provision or clause of this Agreement conflicts with Applicable Law, such conflict shall not affect other provisions of this Agreement which can be given effect without the conflicting provision. In the event that any provision or clause of this Agreement conflicts with Applicable Law, said provision or clause shall be reformed only to the extent necessary to conform with Applicable Law.
18. Dispute Resolution
The Parties agree that any dispute or controversy, arising out of or in connection with this Agreement or any alleged breach thereof, shall be resolved by final and binding Arbitration administrated by National Arbitration and Mediation (“NAM”) in accordance with NAM’s Comprehensive Dispute Resolution Rules and Procedures and the Fee Schedule in effect at the time the claim is filed with NAM. Any award of the Arbitrator(s) is final and binding, and may be entered as a judgment in any court of competent jurisdiction. NAM can be contacted at 800-358-2550. att: Commercial Claims Dept., to respond to any questions regarding the Arbitration process, as well as to request a copy of NAM’s current Comprehensive Dispute Resolution Rules and Procedures and Fee Schedule.
This Agreement constitutes the entire agreement between the Parties. No waiver, consent, modification or change of terms of this Agreement shall bind either Party unless in writing and signed by both Parties. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this Agreement. By accepting this Agreement, You acknowledge that You have read this Agreement, understand it, and agree to be bound by its terms and conditions. Notwithstanding the foregoing, nothing described in this section shall limit or otherwise affect VSW’s exclusive right to modify this Agreement as described herein.
No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver. No waiver by either Party of any breach of any provision hereof shall be deemed a waiver of any subsequent or prior breach of the same or any other provision. Failure or delay by either Party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or have caused this Agreement to be duly executed on their behalf effective as of the date of execution.
Vertical Search Works, Inc.