Advertiser Agreement Terms and Conditions
- "Advertiser" shall mean the entity listed on the Insertion Order.
- "Advertiser Content" shall mean artwork, graphics, logos, and copy made available by Advertiser to TrialPay for use in connection with the delivery and display of an Advertiser Offer.
- "Advertiser Offer" shall mean an advertisement that presents a User the opportunity to take an action relating to Advertiser Content or an Advertiser Product.
- "Advertiser Panel" shall mean the online element of the TrialPay Service that enables Advertisers to upload Advertiser Content, modify certain terms of Advertiser Offers, and access information relating to the Advertiser Offer(s), User Transactions, and the TrialPay Service.
- "Advertiser Product" shall mean the product or service that is advertised or promoted in an Advertiser Offer.
- "Advertiser Site" shall mean the websites owned or controlled by Advertiser and identified on the applicable Insertion Order, linked to in the Advertiser Content, or entered into the Advertiser Panel.
- "Agreement" shall mean these Terms and Conditions and any Insertion Order.
- "Confidential Information" means non-public information that one party ("Owner") discloses or makes available to the other party ("Recipient"), which is either marked as confidential or, if disclosed orally by Owner, identified as confidential at the time of disclosure.
- "Effective Date" shall mean the effective date of the Agreement as set forth on the Insertion Order.
- "Fees" shall mean all of the TrialPay fees identified in the applicable Insertion Order, including but not limited to: Transaction Fees, Set-Up Fees, Creative Services Fees, Slotting Fees, and/or Performance Fees.
- "Insertion Order" shall mean a written request from Advertiser, accepted by TrialPay, that sets forth specific pricing and terms for one or more Advertiser Offers.
- "Merchant Partner" shall mean an entity or organization that directs Users to the TrialPay Service.
- "Special Demographic Information" shall mean information about a User including, but not limited to, gender, age, or location.
- "Third Party Content Owner" shall mean the third party that owns the Advertiser Content, Advertiser Product, or Advertiser Site, if not Advertiser.
- "TrialPay" shall mean TrialPay, Inc. unless otherwise set forth on an Insertion Order.
- "TrialPay Service" shall mean TrialPay's proprietary suite of technology and services, including, but not limited to, technology and services used to target, display, and make available advertising, offers, and payments methods to Users and partners, process related transactions, and provide reporting to Advertisers and Merchant Partners and shall include all data, information, content, software, technology, and services provided by TrialPay to Advertiser hereunder (excluding Advertiser Content).
- "User" shall mean a user of the TrialPay Service.
- "User Transaction" shall have the meaning set forth in the applicable Insertion Order for each Advertiser Offer.
2. Scope of Agreement.
Advertiser desires to advertise and promote Advertiser Products to Users through Advertiser Offers made available through the TrialPay Service in accordance with the Agreement. Advertiser Offers shall be defined in an Insertion Order and/or the Advertiser Panel. Nothing in the Agreement shall be construed as limiting in any manner TrialPay's marketing or distribution activities or its appointment of other affiliates, distributors, merchants, or representatives of any kind.
3. TrialPay Rights and Obligations.
- Throughout the term of the Agreement, TrialPay may at its election (a) host or make available Advertiser Content (b) integrate and display a link to the Advertiser Site from the TrialPay Service ("the "Link"), and/or (c) deliver and display the Advertiser Offer.
- TrialPay reserves the right in its sole discretion to reject or remove any Advertiser Offer or Advertiser Content from the TrialPay Service at any time and for any reason.
- For the term of the Agreement and thirty (30) days thereafter TrialPay shall make available the Advertiser Panel to Advertiser. For purposes of the Agreement, TrialPay's posting of information in the Advertiser Panel shall constitute delivery of notice of such information to Advertiser.
- TrialPay may use any information gathered or received by TrialPay in connection with a User Transaction or Advertiser Offer in order to operate the TrialPay Service.
4. Advertiser Rights and Obligations.
- Advertiser agrees to provide TrialPay the Link and Advertiser Content as directed by TrialPay. Subject to the terms of the Agreement, Advertiser hereby grants TrialPay a non-exclusive and royalty-free worldwide license during the term of the Agreement to incorporate the Link and other Advertiser Content, trademarks, trade names or other designations of source in the TrialPay Service.
- Advertiser agrees to enter and maintain accurate and current information in the Advertiser Panel. Advertiser agrees that all material terms of each Advertiser Offer shall be included in the marketing text or completion instruction segments of the Advertiser Panel. TrialPay reserves the right to make minor stylistic changes to Advertiser Content to ensure consistency of User experiences with the TrialPay Service. Advertiser agrees that any changes to an Insertion Order submitted to the Advertiser Panel are effective upon submission by Advertiser, provided that all such changes may be subject to review and approval by TrialPay, at its election.
- Advertiser represents and warrants that it is not currently subject to an order, litigation, or investigation by any federal, state, or local or international regulatory or law enforcement organization, and agrees to notify TrialPay immediately in writing of any such order, litigation, or investigation arising out of or relating to the Advertiser Products, Advertiser Content, Advertiser Offers, Advertiser Site, or Advertiser's privacy notice.
- Advertiser may elect in the Advertiser Panel to make an Advertiser Offer available to Users outside the United States. By making this election Advertiser represents and warrants that (i) it is familiar with the particular laws, regulations, and industry customs in all jurisdictions in which is distributing the Advertiser Offer, (ii) it has previous experience distributing offers in such jurisdictions, and (iii) it will comply with all such laws, regulations, and industry customs.
- Advertiser agrees to strictly comply with the terms of each Advertiser Offer and prominently display to Users the policy on refunds, returns, and recurring charges (if any) applicable to Advertiser Product. Advertiser is solely responsible for any sales of the Advertiser Product to Users and shall fulfill its obligations with respect to any Advertiser Product purchased by a User.
- Use of the TrialPay Service for presentation of Advertiser Offers involving the installation of an application on a User's mobile device may require Advertiser to access and use the TrialPay Mobile Software Development Kit ("Mobile SDK"). All use of the Mobile SDK is subject to the then-current version of the Mobile SDK license terms available at www.trialpay.com/legal/.
- Advertiser agrees to strictly comply with the terms of all third party platform policies applicable to the Advertiser Offer, including, but not limited to, the platform policies of Facebook Inc., Google Inc., Apple Inc. (each solely as applicable).
- Advertiser will prominently display the applicable privacy notice which describes the information Advertiser or Third Party Content Owner, may gather or generate (automatically or manually) from a User and the explicitly details ways in which Advertiser or Third Party Content Owner will use such information.
- In connection with targeting Advertiser Offers to Users, Advertiser may obtain or determine Special Demographic Information. Special Demographic Information may not be stored, retained, regenerated, or repopulated in any form by Advertiser following completion of the User Transaction. Advertiser may use Special Demographic Information (i) only during the session initiated by such User and (ii) solely as necessary to deliver the Advertiser Offer. If Advertiser is targeting Advertiser Offers to Users on the basis of Special Demographic Information, Advertiser must cause each User session to automatically expire after twenty-four (24) consecutive hours of inactivity by the User. Advertiser is prohibited from using cookies or other tracking technology to track the User on the basis of Special Demographic Information or associate any Special Demographic Information with a User.
- In the event Advertiser is an agency providing services to Third Party Content Owners, Advertiser represents and warrants that (i) Advertiser has all necessary right, title, and interest to grant the licenses set forth in the Agreement and (ii) at all times during the term of the Agreement, it will require Third Party Content Owners to comply with the obligations set forth in this Section 4 as if the Third Party Content Owner is Advertiser, provided that Advertiser acknowledges that Advertiser remains, at all times, solely liable for Advertiser's, or Third Party Content Owner's, failure to comply with the provisions set forth herein.
5. User Support.
As between the parties (a) Advertiser is responsible for all User inquiries relating to Advertiser Products and/or the Advertiser Site; and (b) TrialPay is responsible for User inquiries relating to the TrialPay Service and/or the Advertiser Offers. Each party shall perform prompt and effective customer service to Users in accordance with prevailing industry standards. Each party shall maintain and make available to the other party clear and up-to-date points of contact for User support issues, including an initial User point of contact, a manager of the User support function, and an executive escalation contact.
At all times during the term of the Agreement and for a period of not less than one (1) year thereafter, at its sole cost and expense, Advertiser shall obtain and maintain the following minimum insurance coverage: (a) comprehensive general liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 in aggregate, (b) excess/umbrella liability insurance with a limit of at least $2,000,000 per occurrence, and (c) errors and omissions liability insurance including coverage for Internet advertising claims with a limit of at least $5,000,000. Any claims covered by Advertiser’s insurance policies shall not be offset or reduced in any amount whatsoever by any other insurance which TrialPay may independently maintain. At TrialPay's request from time to time, Advertiser shall promptly provide certificates from its insurers indicating the amount of insurance coverage, nature of such coverage and expiration date of each applicable policy.
Advertiser or Third Party Content Owner shall implement the Tracking Technology and track and record each User Transaction in accordance with the then-current version of TrialPay Advertiser Implementation Guide, which may be modified from time to time upon notice to Advertiser. Advertiser shall, at TrialPay's request, provide periodic reporting to TrialPay relating to the quantity and quality of the User Transactions, such as rates of cancels, refunds, and chargebacks.
8. Billing Records.
The data and records of TrialPay shall be determinative for purposes of calculating the Fees due hereunder. TrialPay may identify User Transactions on the basis of the Tracking Technology as well as documentation or information submitted by a User, and Advertiser shall be obligated to pay the applicable Fee in all such cases even if this User documentation or information ultimately cannot be confirmed. Advertiser is obligated to pay the relevant Transaction Fee once a User Transaction is completed according to the terms of the Insertion Order and regardless of when or whether such User's payment is collected by Advertiser. Advertiser bears all risk associated with collections, defaults, chargebacks, refunds, fraudulent transactions and the like with respect to User Transactions.
- Payment Schedule. All Fees shall be paid to TrialPay on a monthly basis within thirty (30) days after the end of the month, and shall include all Fees relating to User Transactions made during the immediately previous month. Any amounts past due shall bear interest at a rate equal to the lower of 1.5% per month or the maximum rate permitted by applicable law.
- Credit. At TrialPay's request Advertiser shall complete and submit a TrialPay Credit Application. TrialPay reserves the right to require a deposit or prepayment from Advertiser prior to making available any Advertiser Offers on the TrialPay Service. Any deposit or prepayment collected by TrialPay shall not bear interest and need not be segregated by TrialPay or maintained by TrialPay in a separate account.
- Electronic Payments. At TrialPay's request, Advertiser shall accept electronic delivery of invoices and make electronic payments to TrialPay for any Fees due hereunder, whether by wire transfer, ACH, PayPal, or equivalent payment method. Advertiser hereby authorizes TrialPay to collect any past due amounts from Advertiser by means of ACH transfer from Advertiser unless Advertiser revokes this authorization upon written notice to TrialPay.
- Taxes. Amounts shall be paid to TrialPay free and clear of all taxes, withholdings and other governmental charges and assessments ("Taxes") and such amounts shall be grossed up to compensate for any withholdings. Advertiser will pay all such Taxes and all applicable shipping or fulfillment charges in connection with a User Transaction. Advertiser is solely responsible for all reporting obligations to Users related to Taxes.
- Preferred Pricing. In the event that Advertiser makes Advertiser Offers available on the Facebook, Inc. platform, Advertiser represents and warrants to TrialPay that the Fees and related pricing terms offered to TrialPay under the Agreement, including but not limited to the Fee per User Transaction, are no less favorable to TrialPay than the fees and related pricing terms offered to any other social network marketing or promoting the Advertiser Product. In the event Advertiser offers more favorable fees or pricing terms to any other social network then Advertiser shall immediately notify TrialPay of such event and offer such more favorable terms to TrialPay, which if accepted by TrialPay, shall take effect as of the date the more favorable terms became effective for the other party. No more than once per calendar quarter TrialPay may request, and Advertiser shall promptly provide, a written certification from the chief executive officer of Advertiser confirming Advertiser's compliance with the requirements of this Section 9.e.
TrialPay or its agents may, with fifteen (15) days notice, audit Advertiser's records and inspect Advertiser's facilities to verify Advertiser's compliance with the provisions of the Agreement. Advertiser shall immediately pay TrialPay any Fees due to TrialPay that are identified in the course of such audit. If an audit indicates an underpayment of five percent (5%) or more of any amounts due hereunder or other material non-monetary noncompliance by Advertiser, Advertiser will promptly reimburse TrialPay for the reasonable cost of the audit in addition to any amounts otherwise due to TrialPay. TrialPay's audit rights will remain in effect for a period ending twelve (12) months from the termination of the Agreement.
11. Term; Termination.
The Agreement shall commence on the Effective Date and shall remain in effect, unless terminated earlier as provided herein. Either party may terminate the Agreement if the other party materially fails to perform any of its obligations and such failure continues for a period of five (5) business days after receipt by the defaulting party of a written notice specifying the default. Termination or expiration of an Insertion Order will not automatically terminate the Agreement. Further, either party may terminate the Agreement upon ninety (90) days written notice at any time for any reason. The following shall survive any termination of the Agreement: any provision which by its terms survives for a specified period following termination, any accrued rights to payment, Sections 6-11, 13-17, and 20.
12. Representations and Warranties.
Each party hereby represents and warrants that (a) it has the authority to enter into the Agreement and to fully perform its obligations hereunder, (b) the Agreement does not and will not conflict with any of the Party's other obligations to any third parties, and (c) it complies and will comply with all applicable laws and regulations in connection with its performance hereunder. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THE AGREEMENT, NEITHER PARTY MAKES ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT AND SPECIFICALLY DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
Recipient may use Owner's Confidential Information only as necessary to exercise rights and perform obligations under the Agreement. Recipient will protect Owner's Confidential Information from disclosure or misuse by using the same degree of care as for Recipient's own confidential information of like importance, but will at least use reasonable care. Further, both parties agree to have each of their employees, independent contractors, or service providers (including their related entities) with access to any Confidential Information agree to be bound by an enforceable agreement that ensures the protection of the Confidential Information from disclosure to at least the same extent as does the Agreement. A party shall not be bound by this Section 13 with respect to information it can document (i) is generally available to the public without breach of the Agreement, (ii) is lawfully obtained from a third party without a duty of confidentiality, (iii) is known to the Recipient prior to such disclosure without a duty of confidentiality, or (iv) is, at any time, developed by the Recipient independent of any such disclosure(s) from the Owner and the Recipient can reasonably show such independence.
14. Proprietary Rights.
- TrialPay Ownership. As between TrialPay and Advertiser, TrialPay owns and retains all rights, title, and interest in and to all components of the TrialPay Service that constitute protectable intellectual property under any intellectual property law (except for any Advertiser Content incorporated therein) ("TrialPay Property"), including but not limited to all software, intellectual property rights, information, and data related thereto, including any usage data and compilations thereof.
- Advertiser Ownership. As between TrialPay and Advertiser, Advertiser owns and retains all rights, title, and interest in and to all components of the Advertiser Content, Advertiser Products, and Advertiser Site that constitute protectable intellectual property under any intellectual property law (except for any TrialPay Property incorporated therein) ("Advertiser Property"), including but not limited to all software, intellectual property rights, information, and data related thereto, including any usage data and compilations thereof.
- License; Conditions; Restrictions. Except as expressly stated herein, neither party grants the other party any license, express or implied, to the Advertiser Property or the TrialPay Property.
15. Limitation on Liability.
EXCEPT FOR LIABILITY ARISING PURSUANT TO SECTION 17 ("INDEMNIFICATION"), NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THE AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION). IN NO EVENT WILL TRIALPAY’S TOTAL AGGREGATE LIABILITY TO ADVERTISER EXCEED THE FEES PAID BY ADVERTISER TO TRIALPAY PURSUANT TO THE APPLICABLE IO GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRIOR TO THE TIME THE CLAIM AROSE. THIS SECTION WILL NOT LIMIT EITHER PARTY'S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF.
16. Relationship of Parties.
The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of the Agreement. Advertiser shall be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages that may arise on account of Advertiser's activities, or those of its employees or agents, in the performance of the Agreement. Advertiser does not have the authority, right or ability to bind or commit TrialPay in any way (including, without limitation, by agreeing to sales of TrialPay products or services) and will not attempt to do so or imply that it may do so.
- Indemnification by Advertiser. Advertiser shall defend, indemnify and hold harmless TrialPay, TrialPay Merchant Partners, and their respective directors, officers, employees, parents, affiliates, agents, successors and assigns, against any third party claim, demand, cause of action, or liability, including reasonable attorney's fees, to the extent that it is based upon (a) a breach of Advertiser's representations, warranties, or obligations hereunder or (b) the Advertiser Content, Advertiser Site, or Advertiser Product or other materials or services provided or controlled by Advertiser infringing or violating any trademark, copyright, trade secret, patent or other intellectual property rights of any third party.
- Indemnification by TrialPay. TrialPay shall defend, indemnify and hold harmless Advertiser and its respective directors, officers, employees, parents, affiliates, agents, successors and assigns, against any third party claim, demand, cause of action, or liability, including reasonable attorney's fees, to the extent that it is based upon a breach of TrialPay’s representations, warranties, or obligations hereunder.
- Conditions. The indemnification obligations set forth above are conditioned upon (a) the indemnifying party receiving prompt notice of any claim giving rise to an indemnification obligation, (b) the indemnifying party receiving, at its request, the sole authority to control the defense and/or settlement of such claim (provided, however, that in no event will the indemnifying party settle any claim without the prior written consent of the indemnified party), and (c) the indemnified party cooperating fully with the indemnifying party and providing the indemnifying party any information or assistance necessary to defend and/or settle such claim.
Advertiser agrees that TrialPay may identify it as a TrialPay advertiser in client lists and other marketing materials, and that TrialPay may issue an Advertiser-approved press release announcing the existence and general nature of the relationship between the companies. Any other disclosure of the terms of the Agreement or the uses of either party's name and/or logo shall require that party's prior written consent.
19. Merchant Partner Agreements.
During the term of the Agreement and for six (6) months thereafter, (a) Advertiser shall not engage with any Merchant Partner disclosed or identified to Advertiser through the TrialPay Service with respect to any program that is similar (in whole or in part) to the TrialPay Service or (b) Advertiser shall not implement or use any third party provider or any Advertiser internal program that is similar (in whole or in part) to the TrialPay Service. In the event of any violation of this Section, Advertiser shall pay TrialPay, based on Fees paid to TrialPay hereunder prior to the breach, what TrialPay would have otherwise earned from Advertiser under the Agreement had Advertiser not violated this Section. Except as expressly set forth above, nothing herein shall be deemed to restrict Advertiser from entering into independent strategic partnerships or other agreements with Merchant Partners, or to prohibit Advertiser from advertising, merchandising or promoting the Advertiser Products.
All notices under the Agreement shall be in writing and shall be deemed given when personally delivered, when sent by confirmed fax, or three (3) days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice. Neither party shall have any right or ability to assign, transfer, or sublicense any obligations or benefit under the Agreement without the written consent of the other (and any such attempt shall be void), except that a TrialPay may assign and transfer the Agreement and its rights and obligations hereunder in connection with a merger, acquisition, asset transfer, or corporate reorganization. The parties agree that the Agreement shall be governed by the laws of the State of California without regard to the conflict of laws provisions thereof. The parties further agree that if any portion of the Agreement is illegal or unenforceable, such portion shall be limited or excluded from the Agreement to the minimum extent required and the balance of the Agreement shall remain in full force and effect and enforceable. The prevailing party in any action under the Agreement shall be entitled to all reasonable attorneys' fees, collection agency fees, and other costs incurred in connection with enforcing its rights under the Agreement. The Agreement contains the entire understanding of the parties regarding its subject matter and can only be modified or waived by a subsequent written agreement signed by both parties, provided that (i) any agreements or other terms agreed to by TrialPay (prior or subsequent to the Effective Date), including any terms or click-through agreement accepted in order to create an account with Advertiser or its affiliate, are superseded in their entirety by the Agreement and will have no force or effect and (ii) TrialPay may modify these Terms and Conditions from time to time by providing notice to Advertiser, which notice may be electronic or made available in the Advertiser Panel.
Last modified: February 28, 2014