Client Terms and Conditions
a. Client agrees to engage 3point14Digital Ltd. (“3point14Digital”) to perform advertising and marketing services. 3point14Digital may from time to time display advertisements, content, links, lead forms to gather contact information (“Leads”) and other Creative on its network of proprietary and third party affiliate websites (the “Network”) in accordance with these Client Terms and Conditions and the accompanying insertion orders (“Insertion Orders”, collectively with these Client Terms and Conditions and mutually agreed Change Request, the “Agreement”).
b. As set forth on the Insertion Order, 3point14Digital shall display banners, sponsored listings, featured placements, text links, keywords or other promotional content (the “Advertisements”) on the Network (the “Services”).
c. 3point14Digital will receive the filter criteria specified by Client (“Lead Criteria”) in the Insertion Order to be used to determine which Leads are suitable matches to Client. Unless otherwise changed as per the below Change Request procedure, the Lead Criteria agreed to and signed on the Insertion Order by 3point14Digital and Client shall be deemed to be final for 3point14Digital to provide the Services. If any change in the Lead Criteria is required by the Client, 3point14Digital will update the changed Lead Criteria within fourteen (14) business days of signing of a request (Change Request) by 3point14Digital and Client that such Lead Criteria be updated. Change Request shall be submitted in writing in the form annexed at Appendix 1 to these Terms and Conditions which may be changed by 3point14Digital from time to time. The parties acknowledge that changes in Lead Criteria may result in a mutually agreed upon price changes. Only upon a mutual agreement on the revised terms under a Change Request, 3point14Digital will transmit Leads electronically to Client in a mutually agreed manner. Any Leads generated as per the originally signed Insertion Order, before the effective date of the Change Request shall be valid and Client shall not be entitled to deny the validity of such Leads on any grounds whatsoever. Client acknowledges and agrees that Leads transmitted to Client may be transmitted to other clients of 3point14Digital and its corporate affiliates, unless otherwise indicated on the Insertion Order/s.
2. Client Content.
a. Content delivered to 3point14Digital for display on the Network shall conform to the technical specifications (“Technical Specifications”) provided by 3point14Digital to Client and all restrictions on the content of the Advertisements set forth herein. 3point14Digital reserves the right to reject in good faith any Advertisements that violate any provision of this Agreement or any advertising guidelines it provides to Client from time to time or generally which is against the public interest or federal and state laws and regulations.
b. 3point14Digital may develop marketing content concerning Client’s products and/or services for use or display on the Network (“Creative”) which Creative may contain Client-owned materials and Client’s trademarks, trade names and logos (such client-owned materials and marks shall be defined as “Client Content”).
3. Client Representation and Warranties.
a. Client agrees that it will respond to each Lead courteously, professionally and promptly.
b. Client agrees that it will not resell or redistribute or attempt to resell or redistribute any Leads or contact information, including without limitation name, address, telephone number and/or email address (“Lead Contact Information”) provided by 3point14Digital to Client.
c. Client agrees that it will only use the Lead Contact Information to contact the user with respect to the particular products or services in which the user expressed interest and for no other purpose and agrees to maintain such Lead Contact Information in confidence and in compliance with applicable privacy laws.
d. On a monthly basis, Client shall provide a conversion rate summary for the prior month to 3point14Digital. The conversion rate summary shall identify each Lead delivered to Client, the date it was delivered, the Lead ID number provided by 3point14Digital, and whether the Lead was converted. Client will use commercially reasonable efforts to notify 3point14Digital of any indications that Leads are not converting to customers as expected by Client. Information delivered by Client pursuant to this Section 2(d) shall constitute Confidential Information of Client.
e. Client shall not use 3point14Digital’s names or marks unless it first obtains 3point14Digital’s specific written permission for any such use (including but not limited to use in publisher lists and any promotional materials) which 3point14Digital may withhold without assigning any reasons.
f. Client has the right to extend the license rights as per the Clause 6 of this Agreement.
4. Reporting and Payment.
a. 3point14Digital will track applicable Services under the Agreement. 3point14Digital shall make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified. In the event that reporting discrepancies arise between 3point14Digital's Services reports and any other performance reports related to the execution of applicable Services, 3point14Digital's performance reports will be regarded as the correct and actual record of delivery of Services in regards to meeting the applicable Service goals and invoicing.
b. Client shall pay a fee for the Services as set forth on the applicable Insertion Order. Unless otherwise mentioned in the Insertion Order or Change Request, Client will be invoiced at the beginning of each month for the Services provided in the previous month. Payment must be made to 3point14Digital within thirty (30) days of the invoice date. Late payments will accrue interest at the rate of the lesser of one and one half percent (1.5%) per month or the greatest amount permitted by law. In the event of Client’s failure to make payment, Client will be held responsible for all collection expenses including reasonable attorneys’ fees and collection agency fees. 3point14Digital reserves the right to ask for advance payment for Services if Client’s credit history is unacceptable, not reference-able or not well established.
c. 3point14Digital reserves the right to adjust its pricing pursuant to any Client Insertion Order, with 30 days prior written notice to Client. In the event that Client wishes to reject any such pricing adjustment, it shall provide written notice of such rejection to 3point14Digital within 5 days of receipt of 3point14Digital’s notice of its price change and 3point14Digital shall have the option, without any liability, to continue to provide services and Leads to Client under the prior pricing provisions or to terminate the Agreement upon written notice.
5. Make goods. Client’s sole remedy for no or under delivery of all or any portion of Services shall be limited to either: (i) a refund of the proportionate fees paid in advance in respect of the respective Services so not delivered or under delivered, as applicable or (ii) 3point14Digital’s delivery of a “make good” Service under such terms acceptable to both parties.
6. License. Client hereby grants 3point14Digital a non-exclusive, worldwide license to (i) market, display, reproduce (including compression and temporary storage), distribute, perform, transmit, promote and otherwise use any Advertisements provided and/or approved by Client, (ii) develop Advertisements on behalf of Client, including the development of banners, sponsored listings, featured placements, text links and keywords for use in performing the Services, (iii) utilize Client's copyrighted brands or trademarks as part of the Advertisements provided and/or approved by Client in connection with performing the Services, and (iv) reproduce and display Client’s trademarks, trade names and logos and any information material relating to Client on the home pages of, within any lead form, quoting platform, website listing, or other similar location on, the Network. Such licenses will terminate automatically upon the date of expiration or termination of this Agreement. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall constitute a waiver of 3point14Digital’s rights or a restriction on 3point14Digital’s rights to display on the Network any material regarding Client or other clients which is in compliance with applicable law, including intellectual property law.
7. Term and Termination. The Agreement is effective as of the date of the first Insertion Order entered into between the parties, will continue for a period of twelve (12) months and automatically renew for successive yearly terms unless terminated earlier pursuant to this Section. Client shall not have a right to terminate the Agreement for convenience. A party may immediately terminate this Agreement for cause upon written notice for any material breach of the Agreement which remains uncured after thirty(30) business days’ notice of such breach. In addition, if Client’s account is past due, 3point14Digital may suspend any campaign until such time Client brings its account current. Termination of this Agreement shall not relieve Client of its obligations to make payments to 3point14Digital in respect of services delivered prior to such termination date or to entitle Client to any refund of any fees paid to 3point14Digital pursuant hereto.
8. Confidentiality. Neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. For purposes of this Agreement, "Confidential Information" means information that: (i) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Confidential Information shall include, without limitation, the terms of this Agreement, each party’s respective client lists, all data related to the sources of a party’s web traffic (“Source Data”), marketing, financial, technical and other confidential or proprietary information, and with respect to 3point14Digital, the Lead Contact Information. Confidential Information does not include information that: (a) has been independently developed by the receiving party without access to the other party's Confidential Information; (b) has become publicly known through no breach of this paragraph by the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure; (d) has been approved for release in writing by the disclosing party; or (e) is required to be disclosed by a competent legal or governmental authority; provided that the recipient notifies the other party of the required disclosure promptly and in writing and cooperates with the other party, at the other party's request and expense, in any lawful action to contest or limit the scope of such required disclosure. At the request of the disclosing party, the receiving party shall return all of the disclosing party's Confidential Information to the disclosing party.
9. Ownership. Each party will retain all right, title and interest in and to its Confidential Information, websites, intellectual property, its Source Data, any data it obtains from its websites, and any Creative that it develops hereunder (other than the content or intellectual property provided by the other party).
10. Non-circumvention. The parties acknowledge and agree that it is in their mutual best interest to seek to minimize the cost of Internet media distribution for Client’s marketing materials. Accordingly, during the term of this Agreement, Client will not displace, and will use best efforts to preclude any person or entity working on Client’s behalf from displacing, 3point14Digital’s media placements on any web properties operated by publishers that promote or have promoted 3point14Digital proprietary web properties and/or 3point14Digital clients. During the term of this Agreement and for a period of one (1) year following termination, Client will not, directly or indirectly, contract for the provision of Services with any publisher of 3point14Digital. For purposes of this section, references to “3point14Digital” shall include 3point14Digital’s corporate affiliates.
11. Representations and Warranties.
a. Client represents and warrants that (i) it has all necessary rights and permissions to offer, sell and/or license its products and services through the Advertisements and its websites, (ii) its Advertisements and websites comply with all applicable federal and state laws and regulations, including without limitation those prohibiting false and misleading advertising and prohibitions against the advertising of illegal products, (iii) the Advertisements and its websites do not violate any intellectual property rights or any other rights of third parties, including the rights of publicity or of privacy, (iv) the Advertisements and its websites do not contain content that is sexually-explicit, hate-speech, defamatory, obscene or otherwise inappropriate, and (v) the Advertisements and its websites do not contain any viruses, Trojan horses, rootkits, adware, spyware or other malicious code.
2. Each party warrants that it will comply with applicable law in connection with its direct activities related to this Agreement, including, without limitation, its use of any Lead Contact Information.
12. DISCLAIMER; LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET FORTH HEREIN, 3POINT14DIGITAL MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE ADVERTISEMENTS AND THE SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR ASSURANCES OR PROMISES OF ANY LEVEL OF SUCCESS IN CONNECTION WITH ANY CAMPAIGN. 3POINT14DIGITAL SHALL NOT BE LIABLE FOR ANY ACTS OR OMISSIONS OF ITS THIRD PARTY PUBLISHERS OR FOR ANY LOST PROFITS, LOST SAVINGS, OR OTHER CONSEQUENTIAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, CLIENT ACKNOWLEDGES AND AGREES THAT 3POINT14DIGITAL’S AGGREGATE LIABILITY TO CLIENT ARISING UNDER OR RELATED TO THIS AGREEMENT WILL IN NO EVENT EXCEED THE AMOUNT PAID TO 3POINT14DIGITAL BY CLIENT IN THE THREE (3) MONTHS PRECEDING ANY CLAIM GIVING RISE TO SUCH LIABILITY.
13. Indemnification. Client assumes all liability for, and will indemnify, defend, protect and hold 3point14Digital harmless from and against, any and all claims, actions, suits, costs, liabilities, judgments, obligations, losses, penalties, damages, and expenses (including reasonable attorneys’ fees and expenses) of whatsoever kind or nature arising out of any breach or alleged breach by Client of its representations, warranties or obligations in this Agreement. 3point14Digital assumes all liability for, and will indemnify, defend, protect and hold Client harmless from and against, any and all claims, actions, suits, costs, liabilities, judgments, obligations, losses, penalties, damages, and expenses (including reasonable attorneys’ fees and expenses) of whatsoever kind or nature arising out of any breach or alleged breach by 3point14Digital of its representations, warranties or obligations in this Agreement.
14. Governing Law and Venue. This Agreement shall be governed by the laws of India, without reference to principles of conflicts of law. The parties hereby agree to make all attempts to resolve all differences howsoever arising out of or in connection with this Agreement by discussion. If within fifteen (15) business days of the commencement of the discussions the dispute is not resolved the dispute shall be referred to binding arbitration to be conducted in Delhi. Arbitration shall be conducted in accordance with the provisions or the Indian Arbitration and Conciliation Act. 1996 ("Arbitration Act"). There shall be one arbitrator appointed jointly by the parties within 30 days of the dispute or, if the parties are unable to agree on an arbitrator, one will be appointed as per the provisions of the Arbitration Act. The parties agree that until the arbitration proceedings are complete, they will not take their disputes to a Court of Law. All hearings shall be held in Delhi and the language of the arbitration shall be in English.
15. Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights or delegate any of its duties under the Agreement to any third party without the prior written consent of the other party, provided, however, that 3point14Digital shall have the right to assign its rights and obligations hereunder to any affiliate or any acquirer of all or substantially all of its assets or to any successor to 3point14Digital’s business by a change of control. Any attempted assignment, transfer, or delegation in violation of the foregoing provisions will be void.
16. Miscellaneous. This Agreement is the entire agreement between the parties regarding its subject matter and supersedes any other agreements or understandings between us. No modification of the Agreement shall be binding unless in writing and signed by both parties. To the extent that any Insertion Order or a Change Request conflicts with these Terms and Conditions, the Insertion Order or the subsequent Change Request shall control. The parties’ relationship is one of independent contractors and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, or employment relationship between the parties. A party's waiver of, or failure to enforce, any right hereunder on one occasion will not be deemed a waiver of any other right on the same occasion or the same right on any other occasion. If a court of competent jurisdiction declares any provision of this Agreement to be invalid or unenforceable, the remainder of this Agreement will continue in full force and effect. Any notice, approval or other communication to the other party under this Agreement must be submitted by facsimile, email, overnight express mail or certified or registered mail (postage prepaid, return receipt requested) to the other party’s contact details set forth in the Client Insertion Order. 3point14Digital may state in its marketing materials that Client is a client of 3point14Digital.
17. Agency. If Client is acting as an agent on behalf of another entity (“Principal”), Client represents and warrants that it has full authority to bind the Principal to the terms of the Agreement and that it will ensure that the Principal complies with such terms. Irrespective, Client is solely liable to 3point14Digital for the fees due or any other liability incurred under or related to the Agreement.
18. Survival. Sections 8, 9, 10, 12, 13 and 14 of this Agreement shall survive the expiration or termination of this Agreement.