Following are the terms and conditions (the “Standard Terms”) of all web advertising campaign insertion orders (“CIO”) initiated using the BannerStar system. These terms and conditions shall be deemed incorporated by reference into any CIO submitted by the Advertiser as defined hereafter, and shall govern the CIO, superseding all terms therein except for those relating to advertising scheduling and pricing. All CIOs are subject to acceptance by Animation.com. Rates and Standard Terms are subject to change without notice. Animation.com reserves the right to refuse or cancel any CIO, without cause, at any time. The Standard Terms and CIO shall be collectively known as the "Agreement."
1. Definitions. PaceWorks, Inc. (“PW”) offers web advertising solutions on its website, using its proprietary instant banner creation engine, named BannerStar, and by sub-contracting ad serving solutions from third-parties on various on-line or off-line media properties. “Advertiser” shall designate the person or entity using the BannerStar system to promote their business, services, or products. “Ad Network” shall designate PW’s or third-parties’ on-line or off-line media properties or collection of such properties where the advertising campaign is run on. "Medusa" shall refer to the media placement search engine used by BannerStar to find appropriate websites from the featured Ad Networks for the Advertiser to advertise on.
2. Term of Agreement. The term of this Agreement commences on the Acceptance Date set forth in the CIO and terminates on the End Date set forth in the CIO.
3. Terms of Payment. PW shall provide an invoice to Advertiser at the beginning of the web advertising campaign described in the CIO. The ad campaign shall not start if payment in full is not received by the first day of the campaign launch. All payments due hereunder are in U.S. dollars and are exclusive of any applicable taxes. Advertiser shall be responsible for all applicable taxes.
4. No Assignment or Resale of Ad Space. Advertiser may not resell, assign or transfer any of its rights hereunder.
5. Statistics. Animation.com makes no guarantee with respect to usage statistics or level of impressions for any advertisement. Advertiser acknowledges that delivery statistics provided by Animation.com are the official and definitive measurements of Animation.com's performance on any delivery obligations provided in the Insertion Order. No other measurements or usage statistics (including those of Advertiser or Third Parties) shall be accepted by Animation.com or have any effect on this Agreement. An "Impression" means each occurrence of a display of an advertisement.
6. Right to Reject Advertisement. All content of advertisements are subject to Animation.com's approval. Animation.com reserves the right to reject or cancel any advertisement, CIO, URL link, space reservation or position commitment, at any time, for any reason whatsoever (including, but not limited to, belief by Animation.com that any placement thereof may subject Animation.com to criminal or civil liability) .
7. Advertiser Representations. Advertiser will conduct its web advertising campaigns on the ad networks offered by PW in accordance with the highest industry standards. Advertiser acknowledges that PW has no responsibility to review the Advertiser’s advertisement. Advertiser’s web site(s) and advertisements shall not contain, or contain links to, improper or illegal content. PW reserves the right to reject any advertisement, CIO, or URL link embodied within an advertisement at any time. Advertisements are accepted upon the representation that Advertiser has the right to publish the contents of the advertisement, without infringing any rights of third parties. Advertiser agrees to indemnify and hold PW and PW’s web site affiliates harmless against any and all expenses and losses of any kind (including reasonable attorney’s fees and costs) incurred by PW or its web site affiliates in connection with any claim of any kind arising out of publication of the advertisement (including, without limitation, any claim of trademark or copyright infringement, libel defamation, breach of confidentiality, false or deceptive advertising or sales practices) and/or any material of Advertiser to which users can link through the advertisement.
8. Limitation of Liability. PW’S SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND PW DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. PW shall not be liable for any advertisers of content providers whose content appear on the Ad Networks where the ad campaigns are run, nor the contents of any advertisements, web sites or web page. In the event that PW fails to display any advertisements in accordance with this CIO (or in the event of any other failure, technical or otherwise), the sole liability of PW to Advertiser shall be limited to either a refund for the advertisement campaign or placement of “make-good” advertising during a reasonable time after. In no event shall PW be responsible for any consequential, special, lost profits, or other damages arising from any failure to timely run the advertising in accordance with the CIO. Without limiting the foregoing, PW shall have no liability for any failure or delay resulting from conditions beyond PW’s control.
9. Cancellations. Ad campaigns already started cannot be cancelled. Depending on the chosen Ad Network, certain ad campaigns can be put on hold and resumed later, using different creative content. Advertiser acknowledges that rates are based on contracted impression levels. If Advertiser does not fulfill contracted impression levels during the contract time period, Advertiser will be charged the earned rate (CPM based on published PW Rate Card) commensurate with impression levels run.
10.
Campaign
Conditions. Conditions as stated on page one of the CIO, will be met during
the period stated therein. Any conditions that are not met will be subject to
the following from PW: (1) PW will make good for any discrepancy in impressions
or otherwise, to the Advertisers satisfaction, within 30 days (2) If the
campaign has not met the criteria as quantified on page one of this CIO and PW
has not made good for any discrepancy per above, the Advertiser may receive a
refund for any fees paid for the campaign.
11. Termination. In the event of a material breach by Advertiser, Animation.com may terminate this Agreement immediately without notice or cure period, without liability of Animation.com. In the event of any termination, Advertiser shall remain liable for any amount due under a CIO for advertisement processed by Animation.com, and such obligation to pay shall survive any termination of this Agreement.
12. Miscellaneous. No conditions other than those set forth in the CIO or these Standard Terms shall be binding on PW unless expressly agreed to in writing by PW. In the event of any inconsistency between the CIO and the Standard Terms, the Standard Terms shall control. These Standard Terms, together with the CIO, (i) shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts law; (ii) may be amended only by written agreement executed by an authorized representative of each party; and (iii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties.
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