ADVERTISER TERMS AND CONDITIONS
This agreement is by and between Educational Services Alliance, LLC, d/b/a ESAConnection (“ESAConnection”) and advertiser, agency, time-buying service, or other media placement service (collectively “Advertiser”) contracting for the distribution of advertisements (collectively “Ad(s)”) via the ESAConnection.com website (“Platform”). Advertiser and ESAConnection hereby agree as follows:
1. BILLING AND PAYMENTS
Advertisers must purchase a subscription on ESAConnection.com to access the advertising shopping cart on ESAConnection.com. All advertisement inventory, availability, time frames and rates are disclosed in this shopping cart. Ad choices and payments will be made in advance via the advertising shopping cart.
2. TERMINATION
(a) Termination for Convenience: ESAConnection reserves the right to terminate this contract, or to reject, cancel, terminate, or suspend any Ad at any time, for any reason whatsoever.
(b) Termination for Cause: Advertiser may cancel the distribution of Ad(s) if ESAConnection is in material breach of its obligations hereunder and fails to cure such breach within 10 days of Advertiser’s written notice, except as otherwise stated in this contract with regard to specific breaches.
3. AD MATERIALS
(a) Advertiser hereby grants to ESAConnection a worldwide, non-exclusive, limited, sub-licensable right to distribute, reproduce, copy, reformat, digitize, cut, adapt, compress, transcode, display, perform and technologically manipulate an Ad, in each case as reasonably necessary in order to distribute or serve the Ad(s) as ordered by Advertiser, or to comply with any applicable law, regulation or court order.
(b) All Ad(s) must comply with the Platform’s Acceptable Use Policy, which can be found at www.esaconnection.com in section 5(c) of the Terms of Use. Ad(s) cannot promote products in the following categories:
(i) alcohol products;
(ii) gambling products or services;
(iii) drugs/pharmaceutical products;
(c) Ad(s) may not (i) spawn additional windows or messages beyond the original Ad; (ii) distribute adware, spyware, or viruses; (iii) auto-forward users’ browser info; (iv) resemble system dialogue boxes or error messages; or (v) intentionally obscure or falsify the source in any way.
(d) Advertiser shall, at its sole expense, deliver or cause to be delivered, as applicable, the Ad(s) and all materials, including, without limitation, artwork, copy, active URLs, and scheduling instructions (“Ad Materials”) to ESAConnection via the advertising shopping cart in compliance with generally accepted standards of good practice and in accordance with specifications required by ESAConnection.
(e) All Ad(s) provided by Advertiser are subject to ESAConnection prior approval and may, without restriction or liability, be rejected or refused if in its sole discretion ESAConnection deems it to be illegal, unsatisfactory, or unsuitable for any reason whatsoever.
4. RATES AND CHARGES
(a) ESAConnection reserves the right to increase the rates in the advertising shopping cart at any time without notice; provided, however, that rates will not be increased with respect to Ad(s) which have been purchased prior to such rate increases.
(b) Advertiser will pay all non-recoverable out-of-pocket costs incurred in connection with any Ad(s), promotion, contest, sweepstakes, or other service provided by Advertiser.
5. DISTRIBUTION ISSUES; SUBSTITUTIONS
(a) ESAConnection will use commercially reasonable efforts to post Ad(s) with in five (5) business days.
(b) If ESAConnection fails to distribute Ad(s) in the advertising shopping cart due to public emergency or necessity, force majeure, restrictions imposed by law, acts of God, labor disputes, mechanical or electronic breakdowns, or any reason other than Advertiser’s failure to deliver Ad Materials by respective deadline, ESAConnection shall, in its sole discretion, offer Advertiser a comparable Ad distribution when available.
6. AD DATA; REPORTS
(a) ESAConnection may collect, retrieve, retain, analyze, store and otherwise use certain information and/or data relating to any one or more Ad(s), including without limitation, information or data with respect to numbers of views, viewing trends or durations, time shifting or usage statistics, impressions, clicks, interactions subject to Section 8 (b) below, or any other information or data reflecting the success, performance, response rates, or patterns of Subscriber behavior relating to Ad(s) or associated video or other content assets of any kind (collectively “Ad Data”). ESAConnection may provide to Advertiser post-log reports or analytics and insights based on aggregated Ad Data on its own or in combination with third-party or advertiser first-party data (collectively, “Reports”).
(b) Except as otherwise agreed by ESAConnection, it shall have no obligation to provide Advertiser with any Reports or Ad Data of any kind relating to any one or more Ad(s). To the extent ESAConnection does provide Advertiser with Reports or Ad Data as set forth above, ESAConnection shall use commercially reasonable efforts to deliver such Reports or Ad Data to Advertiser in accordance with industry standards, but ESAConnection does not warrant the accuracy of any such Reports or Ad Data.
(c) If ESAConnection provides Advertiser with Ad Data or Reports, such Ad Data or Reports constitute ESAConnection’s Confidential Information and shall be subject to Section 9 below. In addition, Advertiser shall not (i) share Ad Data or Reports with any third parties or disclose Ad Data or Reports to the general public; (ii) combine any Ad Data or Reports received by it with any other data or information; (iii) use such Ad Data or Reports for any purpose other than the evaluation of Advertiser’s advertising campaign on ESAConnection; (iv) re-identify or attempt to re-identify an individual; or (iv) use such Ad Data or Reports for a discriminatory purpose or in a manner contrary to law. Additionally, Advertiser shall use commercially reasonable security controls to safeguard any Ad Data or Reports provided by ESAConnection.
7. INDEMNIFICATION/LIMITATION OF LIABILITY
(a) ADVERTISER IS SOLEY RESPONSIBLE FOR THE CONTENT OF THE AD(S). Advertiser shall, to the fullest extent permitted by law, indemnify, defend, and hold ESAConnection harmless from and against any and all claims, suits, actions, damages, liabilities, judgments, losses, assessments, interest charges, penalties, costs, and expenses (including, attorneys’ fees and disbursements) arising out of or relating to: (i) the creation or production of Ad(s) provided and/or authorized by Advertiser; (ii) the distribution of the Ad(s), the content or subject matter of the Ad(s), the Ad Materials, including, without limitation, any Ad or Ad Materials that infringe, misappropriate, or violate the rights of any third party, IP or otherwise, violate applicable law or regulations, or give rise to any claim or cause of action or results in actual damages or losses; (iii) any breach or alleged breach by Advertiser of this contract or any of Advertiser’s representations or warranties hereunder; and (iv) any third-party claims related to the use of any data provided by Advertiser.
(b) Notwithstanding anything in this contract to the contrary, the sole remedies available to Advertiser for any claims arising out of: (i) a breach of this contract by ESAConnection or its affiliates; (ii) the negotiation or performance of this contract by ESAConnection; or (iii) the distribution by ESAConnection of the Ad(s) or Ad Materials provided by or on behalf of Advertiser shall, as determined in ESAConnection’s sole discretion, be either: (1) substitute distribution of Ad(s) or Ad Materials or related material at a subsequent time in the same or comparable manner; or (2) a refund of amounts paid by Advertiser for the unfulfilled portion of this contract.
(c) IN NO EVENT SHALL ESACONNECTION BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, GOOD WILL, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS CONTRACT OR BE SUBJECT TO EQUITABLE REMEDIES OR INJUNCTIVE RELIEF. ADVERTISER AGREES THAT ESACONNECTION’S MAXIMIUM LIABLITY FOR ADVERTISER’S DAMAGES FOR A BREACH OF THIS CONTRACT BY ESACONNECTION SHALL NOT EXCEED THE AMOUNT PAID BY ADVERTISER TO ESACONNECTION FOR PLACEMENT OF AD(S) DURING THE SIX (6) MONTH TIME PERIOD IMMEDIATELY PRECEEDING ESACONNECTION’S DOCUMENTED BREACH OF THIS CONTRACT.
8. REPRESENTATIONS AND WARRANTIES
(a) Advertiser represents and warrants that: (i) Advertiser has the right to enter into this contract and the power and all authorizations necessary to conclude this contract for and on behalf of the Advertiser; (ii) Advertiser has, at its sole expense, secured all necessary licenses, rights, releases, consents and clearances required in connection with such distribution on the Platform, including, but not limited to, copyright performance and music synchronization rights (including without limitation through to the viewer music performance rights) with regard to all Ad(s) and Ad materials; (iii) the Ad(s) do not violate any federal, state or local laws, statutes, ordinances, or regulations and codes; (iv) Ad(s) are not defamatory, libelous, pornographic, obscene, or otherwise unlawful; (v) Advertiser has the sole right, title, and interest in or has written permission to make use of the name, logos, and trademarks of the entity under which Advertiser advertises and does business; (vi) Advertiser has a reasonable basis for all claims made within the Ad(s), possesses appropriate documentation to substantiate such claims, and shall fulfill all commitments made in its campaigns, and that all product information it provides is truthful, accurate, and complete, and is not misleading in any way; (vii) all Ad(s) comply with ESAConnection’s Acceptable Use Policy, which can be found at www.esaconnection.com in section 5(c) of the Terms of Use; (viii) Advertiser shall not use ESAConnection short code or keywords except as permitted by ESAConnection in connection with the applicable Ad; (ix) all Ad(s) are free of viruses, bombs, bots, and other computer routines that may damage or expropriate any ESAConnection data or system; (x) Advertiser shall not use or retain any data collected through the Platform, or otherwise received from ESAConnection except as necessary for delivery (for clarification, the foregoing precludes, among other things, Advertiser from re-targeting or remarketing covered site users on other websites); (xi) Advertiser shall not use the Ad(s) to place any Flash local shared objects or other types of client-side storage on the computer of a covered site user, except for HTTP cookies; and (xii) Advertiser shall comply with all laws in connection with its receipt and use of ESAConnection information and exercise of its rights under this contract.
(b) For the provision of customers and potential customers obtained by means of Ad(s): Advertiser will (i) use the contact information provided by any of ESAConnection’s subscribers (each a “Subscriber”) solely for the purposes of providing such Subscribers with communications they have specifically opted-in to receive and shall clearly inform the customer regarding the costs and uses of their contact information; (ii) make reasonably available to such customer the privacy policies to which such information shall be subject; (iii) not disclose, sell or share any personally-identifiable Subscriber information to any third party; (iv) respond to all Subscriber inquiries promptly and efficiently including requests for “do not call or email”; (v) transmit all contact data securely and keep all contact data in a secure environment and otherwise be respectful and protective of Subscribers privacy. In addition, communications made by Advertiser to Subscribers shall only promote the products and services of Advertiser for which a Subscriber has expressly requested and shall not include any advertisement, sponsorship or promotion by any party other than Advertiser. Further, any communications between Advertiser and Subscribers or potential Advertiser customers are subject to the reasonable approval of ESAConnection.
(c) For the provision of Advertiser Data:
(i) Advertiser represents and warrants that: (A) any data (including data collected by way of a pixel or a cookie) provided by Advertiser or its respective service providers to ESAConnection, including, but not limited to defining or identifying a target segment, facilitating the delivery of data-informed and/or addressable advertising, or providing post-campaign measurement or analytics (“Advertiser Data”): (I) has been collected in accordance with all laws and privacy policies, (II) the use of such Advertiser Data by ESAConnection will not violate any laws or the rights of any third parties; (III) Advertiser has the rights (including any necessary consumer consents) to collect, use, transfer, and disclose the Advertiser Data for the purpose for which it is being provided including the services contemplated herein, and (IV) the collection or use of data arising from an Ad is done in compliance with Advertiser’s privacy policy, applicable law, and any applicable industry self-regulatory principles or rules that may be applicable to Advertiser; (B) it shall not use targeting criteria or create segments based on any categories of data in a manner that (I) would violate applicable law, (II) would deliver what a reasonable person would determine to be offensive, prejudiced or insensitive advertising content, or (C) absent ESAConnection’s written approval, it will not use targeting criteria or create segments using any data related to race or ethnicity, health or medical information, negative financial status, credit score, Social Security numbers, tax identification numbers, driver’s license numbers, sexual orientation, religious or philosophical beliefs, union membership, interest or participation in an adult activity (e.g., gambling, alcohol purchase or consumption, gun ownership), the existence of health insurance, immigration status, or any information that is not used to facilitate an internal match. To the extent ESAConnection reasonably believes that Advertiser is using targeting criteria that would be in violation of this section or is likely to result in a Negative Effect (as hereinafter defined), ESAConnection shall provide notice to Advertiser and the parties shall discuss in good faith a potential resolution, if any. For purposes of this Section, “Negative Effect” means a material or substantial adverse effect on a party’s business (“Affected Party”) as a result of the following: (I) performance of this contract would result in legal or regulatory liability or investigations or inquiries (including in relation to privacy issues) or violations of any applicable law or (II) a reasonable person would believe that continuing the relationship under this contract would create an undue risk of damage to the Affected Party’s name, image, reputation, goodwill or proprietary rights.
(ii) Advertiser represents and warrants that it will remain responsible for providing all consumer notices, offering all required consumer choices, and honoring any applicable opt-outs related to the Advertiser Data. Advertiser acknowledges that ESAConnection’s use of any data provided by Advertiser that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household or to a particular device (“Personal Information”), may be considered “sale,” “sharing,” and/or “targeted advertising” for purposes of all applicable laws and that Advertiser is responsible for removing all applicable opt-outs.
(iii) Advertiser represents and warrants that it will notify ESAConnection in writing and wait for ESAConnection’s affirmative authorization before disclosing, directly or indirectly, any information to ESAConnection that includes sensitive data or sensitive personal information or was created based on sensitive data or sensitive personal information as defined by applicable law. Advertiser is responsible for ensuring that all sensitive data is designated using a method that is reasonably acceptable to ESAConnection. ESAConnection may decline to accept or otherwise use Sensitive Data at any time for any reason whatsoever.
(iv) Advertiser represents and warrants that it remains responsible for receiving, verifying, and responding to all consumer requests. ESAConnection is not obligated (A) to re-identify any data that cannot be linked by ESAConnection to a particular consumer or (B) to disclose or delete any information that is not maintained exclusively on behalf of Advertiser.
(v) Advertiser represents and warrants that it will not provide any data from any website owned and operated by Advertiser (or a portion thereof) that is directed to children under the age of 13, as defined by the Children’s Online Privacy Protection Act and its associated rules.
(d) The person who purchases this advertising agrees to this contract on behalf of Advertiser and expressly represents and warrants that he/she has full and complete authority to do so. If Advertiser is an agency, other media buying service or time-buying service acting on behalf of an advertiser and/or agency (or both, as the case may be) such agency, other media buying service or time buying services hereby represents, warrants and covenants that it has the authority from such advertiser and/or agency (or both as the case may be) to enter into this contract and to otherwise act as agent for such advertiser and/or agency (or both as the case may be) for all purposes hereof.
(e) Advertiser hereby attests that (i) if Advertiser is an organization, it is based in the United States and is legally permitted to sponsor or pay for Ad(s) in the United States, and (ii) if Advertiser is an individual, he or she is a United States citizen or a lawfully admitted permanent resident of the United States.
(f) For political Ad(s): If Advertiser submits for distribution any political Ad(s), Advertiser represents and warrants that it will provide the necessary information, documents, and records to ESAConnection so that it is able to comply with applicable law, including federal and state political advertising record-keeping and disclosure requirements.
(g) ESAConnection and it’s affiliates hereby disclaim any and all warranties, including, without limitation, any warranties of merchantability, fitness for a particular purpose, or other warranties arising by usage of trade, course of dealings, or course of performance. Without limiting the foregoing, ESAConnection specifically disclaims any warranties relating to the effectiveness of any Ad(s) distributed pursuant to this contract and does not guarantee any financial benefits to Advertiser by virtue of distributing Advertiser’s Ad(s). All reports and data provided, if any, by ESAConnection hereunder are provided ‘as-is’ without any warranties or representations of any kind. ESAConnection does not warrant or guarantee customer response rates or the ability to convert responses into sales. ESAConnection does not warrant or guarantee the profile or demographics of a respondent and it specifically disclaims and makes no representations and warranties of any kind, express or implied, regarding ratings and impressions estimates. ESAConnection makes no representations or warranties to Advertiser with respect to the number or composition of: (i) Subscribers to whom an Ad actually may be distributed; or (ii) users who may view or access an Ad, as the case may be.
9. CONFIDENTIAL INFORMATION
ESAConnection and Advertiser each agree to take commercially reasonable steps to protect all “Confidential or Proprietary Information” provided by one party to the other or obtained in the performance of this contract, and not to publish or disclose the other party’s Confidential or Proprietary Information to any third party without the other’s written permission. Confidential or Proprietary Information shall include all information that a party should reasonably understand because of legends or other markings, the circumstances of disclosure, or the information itself, to be proprietary and confidential to the disclosing party regardless of whether such information is marked “Confidential.”
10. ADDITIONAL TERMS
(a) ESAConnection’s obligations hereunder are subject to all laws and applicable network, publisher and carrier guidelines, now enforced or hereafter enacted.
(b) This contract, including the rights under it, may not be resold, assigned or transferred by Advertiser without first obtaining the written consent from ESAConnection; nor may ESAConnection be required to distribute the Ad(s) hereunder for the benefit of any advertiser other than the party originally named. Any resale, assignment, or transfer prohibited hereunder shall be null and void.
(c) Failure of ESAConnection or Advertiser to enforce any of the provisions herein shall not be construed as a general relinquishment or waiver as to that or any other provision.
(d) ESAConnection shall exercise normal precautions in handling property provided by the Advertiser but assumes no liability for loss or damage to Ad Materials and other property furnished by Advertiser hereunder.
(e) ESAConnection shall only recognize agency commissions that conform to industry standards and practices and shall have no obligation to pay such commissions.
(f) This contract contains the entire agreement between the parties relating to the subject matter hereof, and no change or modification of any of its provisions shall be effective unless made in writing and signed by both parties.
(g) This contract shall be interpreted, governed, and construed in accordance with the laws of the State of Arizona without regard to its principles governing conflicts of law.
(h) All disputes, controversies or claims that relate in any way to this contract, will be resolved by arbitration in Maricopa County, Arizona, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award by the arbitrators shall be final and may be enforced in any court having jurisdiction. Further, no action, regardless of form, arising out of or relating to the transactions under this contract, may be brought by Advertiser more than 120 days after the occurrence giving rise to such action.
(i) Nothing in this contract shall constitute a partnership or joint venture between the parties or constitute either Advertiser or ESAConnection as the agent of the other for any purpose whatever.
(j) If any provision of this contract is amended, invalid, illegal, or unenforceable in any jurisdiction, the remainder of this contract shall remain in full force and effect.
(k) Advertiser agrees that ESAConnection may identify it as an Advertiser in client lists and other marketing materials.
(l) Identity Verification. For political advertising the Advertiser must provide the: organization name, address, phone number, email and federal tax identification number (i.e. FEIN) or Federal Election Commission (FEC) identification number to billing@esaconnection.com; in the absence of an FEIN or FEC ID number, Advertiser may provide a copy of its W-9 or IRS verification letter (CP 575).
(m) The following provisions shall survive the completion, cancellation, or termination of this contract: Sections 6, 7, 8, and 9.