I. SLINGSHOT PBU SERVICES
This agreement, in conjunction with the corresponding Insertion Order, shall constitute Advertiser’s, its clients’ and agents’ (herein collectively referred to as “Customer”) understanding that Slingshot PBU’s sole obligation is to promote the Advertiser’s product or services by showing banners or videos or audio (“Creative”) provided by the Customer on site(s) across the Slingshot PBU’s Network (the “Agreement”). The submission of a signed Insertion Order by Customer to Slingshot PBU is construed as an acceptance of all the rates, terms and conditions under which advertising is sold at that time. Any and all modifications to this Insertion Order are invalid unless acknowledged and accepted in writing by both Slingshot PBU and the Customer. Customer agrees that Slingshot PBU may, but is not obligated to, display Creative across the entire Slingshot PBU advertising network or on specific site(s) Slingshot PBU may, at its option, modify the flight date of a Campaign(s) if the creative or linking URL’s: are not delivered on time, there are delays due to 3rd party ad-serving, inventory fluctuation or other issues. All rates quoted herein, orally, or through written communications are only valid fourteen (14) days from date of such statement. If no agreement is reached within this time frame Slingshot PBU reserves the right to change rates.
All rates are quoted based on expected price outcome and the expected bid price based on the campaign plan and strategy. All media being bought (unless programmatic guaranteed) are bought on a biddable basis and is dependent upon the current market demand, audience availability, search volume and publisher inventory availability within buying platforms and is subject to market volatility and demand. Slingshot PBU will bid according to the set KPI’s of the campaign to work towards the desired KPI and outcome. This will affect quoted prices and all quoted prices are subject to actuals. All quoted rates are exclusive of GST.
V. CREATIVE STANDARDS
- All advertisements are subject to Slingshot PBU’s approval. Slingshot PBU reserves the right to reject, discontinue, or omit any Creative or any part thereof. This right shall not be deemed to have been waived by acceptance or actual use of any Creative. Slingshot PBU may reject any Creative that Slingshot PBU feels is not in keeping with reasonable standards outlined herein. Slingshot PBU is not liable for errors in Creative position and/or placement, or typographic errors of any kind.
- If Customer intends to provide Slingshot PBU with Creative via 3rd party tags, Customer agrees to provide Slingshot PBU with a sample of each and all advertisements contained within the 3rd party tags. Failure to do so will be deemed a breach of this Agreement. In the event Slingshot PBU’s relationship with its publishers is damaged or lost as a result of a breach of this condition, Slingshot PBU reserves the right to recover any and all monetary damages.
- All creatives provided to Slingshot PBU will assume that creative is functioning properly and Customer agrees to pay for all impressions and clicks derived from the creative as measured by Slingshot PBU. All problems related to creative should be immediately brought to the attention of Customer’s Slingshot PBU account executive.
d. Customer agrees and understands that if Slingshot PBU is requested to retrieve creative for and on behalf of Customer that Slingshot PBU performs this service solely as a courtesy to Customer, and as such Slingshot PBU will not be liable for any errors, including but not limited to retrieving incorrect creative. Furthermore, Customer agrees to pay for all campaigns delivered for and on behalf of Customer, as defined in the insertion order, where Slingshot PBU was requested to obtain creative from a location provided by the Customer.
VI. LIMITATION OF LIABILITIES
Slingshot PBU shall not have any liability to the a Customer for lost profits or other consequential, special, indirect or incidental damages, based upon a claim of any type or nature (including, but not limited to, contract, tort, including negligence, warranty or strict liability), even if advised of the possibility of such damages. In any event Slingshot PBU shall not have any liability to the advertiser for lost profits or other consequential, special, indirect or incidental damages, based upon a claim of any type or nature (including, but not limited to, contract, tort, including negligence, warranty or strict liability), even if advised of the possibility of such damages. In any event Slingshot PBU’s total obligations and/or liability can never exceed the charge for the advertisement in question. Except as expressly set forth herein, Slingshot PBU makes no other warranties to Customer and disclaims all warranties of merchantability or fitness for a particular purpose’s total obligations and/or liability can never exceed the charge for the advertisement in question except as expressly set forth herein, Slingshot PBU makes no other warranties to Customer and disclaims all warranties of merchantability or fitness for a particular purpose.
VIII. FORCE MAJEURE
Slingshot PBU is not liable for delays in delivery and/or non-delivery in the event of an act of God, actions by any governmental or quasi-governmental entity, Internet failure, equipment failure, power outage, fire, earthquake, flood, insurrection, riot, act of terrorism, act of war, explosion, embargo, strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow- down, or any condition beyond Slingshot PBU’s control affecting production or delivery in any manner.
Parties have disclosed or may disclose to each other information relating to each party’s business (including, without limitation, data and other information pertaining to publisher sites, affiliates and vendors that are or have been part of the Slingshot PBU Network), all of which to the extent previously, presently or subsequently disclosed to each other is “Proprietary Information.” Proprietary Information does not include information that each party can document (a) is or becomes (through no improper action or inaction of each party or its Representatives (as defined below)) generally known by the public, (b) was in its possession or known by it without restriction prior to receipt from the other party or (c) becomes available to a party from a source other than the other party or its Representatives having no obligation of confidentiality. (“Representatives,” when used with respect to either party, means that party’s affiliates, agents, officers, directors, consultants and employees). Parties agree (i) to hold Proprietary Information in strict confidence and to take all reasonable precautions to protect such Proprietary Information (including, without limitation, all precautions each party employs with respect to its most confidential materials), (ii) not to make any use whatsoever at any time of such Proprietary Information, except for the purpose of evaluating the results of Customer’s advertising campaign, (iii) not to copy any Proprietary Information for any purpose whatsoever without written permission from each party, and (iv) not to divulge any Proprietary Information or any information derived therefrom to any third party or employee, except those of each party’s employees who have a legitimate “need to know” and are bound in writing to the restrictions herein. Each party will be responsible for a breach of this Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Proprietary Information and will cooperate with the other party in every reasonable way to help regain possession of such Proprietary Information and prevent its future unauthorized use.
X. PROPRIETARY RELATIONSHIPS
Slingshot PBU has proprietary relationships with the publishers that make up the Network. With the exception of reasonably documented, pre-existing relationships with direct publishers or networks or relationships entered into in the ordinary course of Customer s business, Customer agrees not to solicit, induce, recruit or encourage, directly or indirectly, any publisher that the Customer knows, or has reason to know, is a publisher on the Network for the purpose of offering to such publisher products or services that compete with those of Slingshot PBU, including, without limitation, the placement or hosting of advertising in any form without the express, written consent of Slingshot PBU. Customer understands that in the event of a breach of the forgoing representations by Customer, Slingshot PBU shall be entitled to injunctive or other equitable relief as a remedy therefore, without the necessity of posting a bond with respect thereto. Any such relief awarded shall be in addition to any appropriate relief which may be awarded in the form of monetary damages, and Slingshot PBU shall be entitled to monetary damages to the fullest permitted under applicable law. The foregoing remedy is a material, bargained for basis of this agreement and has been taken into account in each party’s decision to enter into this Agreement.
XI. CHOICE OF LAW AND VENUE
It is agreed that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement, shall be exclusively governed by Australian law without respect to conflict of law provisions. The parties further agree to submit to personal jurisdiction in the courts of NSW (Australia) as such courts shall serve as the exclusive venue for all dispute resolution. The prevailing party of any litigated dispute arising out of or relating in any way to this Agreement shall receive its reasonable attorneys’ fees, together with its costs and expenses incurred resolving the dispute as part of the judgment.
Paragraphs 5, 6, 8 and 10 shall survive in perpetuity after the termination of this agreement by either party; Paragraph 9 shall survive for six (6) months from such termination.