Online Advertising Agreement - Template, Sample Form Pro · US-law

ONLINE ADVERTISING AGREEMENT

This Online Advertising Agreement (this "Agreement") is made and entered into and effective as of ________ (the "Effective Date"), by and between the following parties:

________, a ________ organized under the laws of the State of ________ (hereinafter referred to as "Publisher"), having an address at:

________

Email: ________

and ________, a ________ organized under the laws of the State of ________ (hereinafter referred to as "Client"), having an address at:

________

Email: ________

Publisher and Client shall each be referred to individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS, Publisher is engaged in the business of providing online space for advertising on Publisher's website located at ________ (the "Website"), the contents of which include the following:

________

WHEREAS, the Website is configured to support third-party advertisements;

WHEREAS, Client wishes to utilize Publisher's advertising space for the placement of online advertising;

WHEREAS, Client's business is compatible with Publisher's platform and is specifically as follows:

________

WHEREAS, the Parties each desire to memorialize their understanding in this Agreement;

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:

ARTICLE 1 — ADVERTISING SCOPE & SERVICES

§ 1.1 Publisher agrees to publish the advertisements set forth below in Table A (the "Advertisements") on the Website for the run dates and upon the payment terms described herein. Should Client wish to remove any Advertisement from the Website prior to its natural expiration as listed in Table A, Client may request Publisher to do so in writing; however, no refunds shall be made for early withdrawal of any Advertisement.

§ 1.2 Table A:

Type of Advertisement	Description	Run Dates	Price
________	________	________	________

ARTICLE 2 — PAYMENT TERMS

§ 2.1 Client shall be responsible for full payment of the Advertisements as listed in Table A. Except as otherwise provided herein, all fees are due and payable prior to the run date of the applicable Advertisement. Specifically, fees are due as follows:

________

§ 2.2 All amounts are stated in U.S. Dollars and are exclusive of any applicable sales, use, or similar taxes, which shall be the responsibility of Client.

§ 2.3 Any payment not received when due shall accrue a late charge in the amount of $________ (________) per occurrence, together with interest on the unpaid balance at the rate of ________% per annum or the highest rate permitted by applicable law, whichever is less.

§ 2.4 For any fees left unpaid five (5) days past their due date, Publisher reserves the right to suspend all Advertisements on the Website, without refund to Client. Publisher may, in its sole and exclusive discretion, additionally terminate this Agreement.

ARTICLE 3 — CLIENT DELIVERY & RESPONSIBILITIES

§ 3.1 DELIVERY. Client shall be responsible for delivering all advertising content (the "Content") to the following email address: ________ (the "Contact Point").

§ 3.2 Content shall be delivered to Publisher no later than the following amount of time prior to the scheduled start of the applicable Advertisement, as listed in Table A (the "Cutoff Date"): ________. If Client does not deliver the Content by the Cutoff Date, Publisher shall not be liable or responsible for any delayed start of the Advertisement. In such case, Publisher and Client may confer in writing (for which email shall suffice) regarding new run dates for the Advertisement. Publisher may, in its sole and exclusive discretion, limit the scheduled run time of the Advertisement due to late delivery of Content.

§ 3.3 CONTENT REQUIREMENTS. Client shall be solely responsible for providing the Content in the formats required by Publisher. Advertisements produced under this Agreement shall conform to Publisher's existing editorial voice and style. Publisher must individually approve all Content for Advertisements and is not bound to approve any individual piece of Content. Publisher is not liable for any Advertisement or portion of any Advertisement which may not conform to the required criteria.

§ 3.4 ERRORS. Errors and omissions in Content are the sole and exclusive responsibility of Client. Client shall immediately notify Publisher of any error or omission, and Publisher shall act with reasonable speed to correct such error or omission.

§ 3.5 Publisher may reject, remove, or modify any Advertisement in its sole and exclusive discretion and is under no obligation to approve any Content submitted.

§ 3.6 COMPLIANCE. Client shall ensure that all Content and Advertisements comply with all applicable laws, rules, and regulations, including, without limitation, Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45), the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 C.F.R. Part 255), the CAN-SPAM Act of 2003 (15 U.S.C. § 7701 et seq.), and all applicable consumer-protection, privacy, and data-protection laws.

ARTICLE 4 — MODIFICATION AND CANCELLATION REQUESTS

§ 4.1 Client may request modification of the Content in writing to Publisher. Publisher is not obligated to modify any Content or Advertisement, but requests to do so shall not be unreasonably denied.

§ 4.2 Client may request cancellation of an existing Advertisement in writing to Publisher. Such request must be received prior to the commencement of any work being completed by Publisher on the applicable Advertisement to be considered. For any request for cancellation made after Publisher has begun work on the Advertisement, Client shall not be entitled to a refund of any monies paid for that Advertisement.

ARTICLE 5 — INTELLECTUAL PROPERTY

§ 5.1 Client represents to Publisher and unconditionally warrants that all Content delivered by Client to Publisher for the Advertisements is the sole and exclusive intellectual property of Client, that there are no encumbrances on the Content, and that Client has the right to license the Content for Publisher's use. Client hereby represents and warrants that the Content will not violate the intellectual property rights of any third party.

§ 5.2 Client further represents and unconditionally warrants that all Content is not defamatory, discriminatory, violent, or obscene, does not constitute false or deceptive advertising, does not solicit unlawful behavior, and does not violate any applicable laws, rules, or regulations, and that Client has the unencumbered right to sell the products or services described in the Advertisements.

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§ 5.4 LICENSE. Client hereby grants to Publisher a limited, non-exclusive, non-transferable, non-assignable, royalty-free license to use any Content for the limited purposes of producing and running the Advertisements. The license granted through this Agreement shall automatically terminate upon the termination or expiration of this Agreement.

ARTICLE 6 — TERM & TERMINATION

§ 6.1 This Agreement is effective as of the Effective Date and shall terminate on the following date: ________, unless earlier terminated in accordance with this Agreement.

§ 6.2 Either Party may terminate this Agreement for material breach of any of its terms, immediately and without notice. Such material breach includes, but is not limited to, Client's failure to pay fees when due.

§ 6.3 This Agreement shall also immediately terminate, without notice, upon the liquidation, dissolution, or discontinuance of the business of either Party in any manner, the filing of any petition by or against either Party under federal or state bankruptcy or insolvency laws, the conviction of any Party of any crime or offense, the failure or refusal of any Party to comply with the written policies or reasonable directives of the other Party, or any serious misconduct by a Party in connection with its performance under this Agreement.

§ 6.4 Client may terminate this Agreement at any time, for any reason, but all fees owed shall be pro-rated based on Publisher's completed work up to the point of cancellation. Publisher is the sole and exclusive Party responsible for determining such work and pro-rated amount, but Client may request a record of work if desired. Termination notice must be received in writing by Publisher, but no specific advance notice is required.

§ 6.5 Publisher may terminate this Agreement at any time, for any reason, by providing written notice to Client. No specific advance notice is required. If Publisher terminates this Agreement during a period in which Advertisements are currently running, Publisher agrees to continue running such Advertisements until the agreed-upon end date, unless material breach was the cause for the termination, in which case Publisher shall be under no obligation to continue running any Advertisements for Client.

§ 6.6 Upon termination for any reason, Publisher shall return all Content to Client.

ARTICLE 7 — CONFIDENTIALITY

§ 7.1 Each Party agrees, during the Term and for a period of ________ years thereafter, to hold in strictest confidence and not to use, except for the benefit of the Parties or as required by law, or to disclose to any person, firm, or corporation without the prior written authorization of the other Party, any Confidential Information. "Confidential Information" means any of the Parties' proprietary information, technical data, trade secrets, or know-how, including, but not limited to, reports, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed by one Party to the other Party, either directly or indirectly. Each Party may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with the other Party's personnel or authorized representatives, or for any other purpose that the other Party may hereafter authorize in writing. At the request of either Party or upon termination of this Agreement, the other Party shall promptly return all copies of Confidential Information received from such Party, and shall promptly destroy all other Confidential Information prepared by it in connection with this Agreement, including, without limitation, any notes, reports, or other documents.

§ 7.2 The obligations under this Article 7 shall not apply to information that (a) is or becomes publicly available through no fault of the receiving Party; (b) was rightfully known to the receiving Party prior to disclosure; (c) is rightfully received from a third party without breach of any obligation of confidentiality; or (d) is independently developed without use of the disclosing Party's Confidential Information. Nothing herein shall prohibit disclosure required by law, regulation, or valid court order, provided that the receiving Party gives reasonable prior notice to the disclosing Party where legally permitted.

ARTICLE 8 — INDEMNITY

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ARTICLE 9 — INSURANCE

§ 9.1 Client shall maintain, at its sole expense and throughout the Term, insurance coverage as follows:

________

§ 9.2 Upon request, Client shall furnish Publisher with certificates of insurance evidencing such coverage and, where applicable, naming Publisher as an additional insured.

ARTICLE 10 — LIMITATION OF LIABILITY; WARRANTIES; MISCELLANEOUS

§ 10.1 IN NO EVENT SHALL PUBLISHER BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITIES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ADVERTISEMENTS, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

§ 10.2 IN NO EVENT SHALL PUBLISHER'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO PUBLISHER UNDER THIS AGREEMENT.

§ 10.3 NO WARRANTIES. Publisher makes no representations or warranties, express or implied, regarding the performance, placement, results, number of impressions, clicks, or any other outcome of the Advertisements. The Advertisements and any related services are provided on an "AS IS" and "AS AVAILABLE" basis. PUBLISHER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

§ 10.4 NO GUARANTEE OF AVAILABILITY. Publisher does not guarantee that the Website will be available at all times or that it will be free from interruptions, errors, or downtime. Publisher shall not be liable for any temporary unavailability of the Website or for any failure to display the Advertisements due to technical issues beyond Publisher's reasonable control.

§ 10.5 INDEPENDENT CONTRACTORS. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the Parties. Neither Party shall have the authority to bind or obligate the other Party in any manner whatsoever.

§ 10.6 SURVIVAL. The provisions of this Agreement which by their nature should survive termination or expiration of this Agreement, including, but not limited to, the provisions regarding intellectual property, confidentiality, indemnity, limitation of liability, and general provisions, shall survive the termination or expiration of this Agreement.

ARTICLE 11 — GENERAL PROVISIONS

a) GOVERNING LAW. This Agreement shall be governed in all respects by the laws of the State of ________, without regard to its conflict-of-laws principles, and by any applicable federal law. Both Parties consent to the exclusive jurisdiction of the state and federal courts located within the State of ________. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. The venue for any disputes permitted under this Agreement shall be the following county: ________.

b) LANGUAGE. All communications made or notices given pursuant to this Agreement shall be in the English language.

c) ASSIGNMENT. This Agreement, and the rights granted hereunder, may not be assigned, sold, leased, or otherwise transferred in whole or in part by either Party without the prior written consent of the other Party.

d) AMENDMENTS. This Agreement may only be amended in a writing signed by both Parties.

e) NO WAIVER. None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute a waiver of such term or any other term.

f) SEVERABILITY. If any provision or term of this Agreement is held to be unenforceable, then this Agreement shall be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the remainder of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement.

g) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral.

h) HEADINGS. Headings to this Agreement are for convenience only and shall not be construed to limit or otherwise affect the terms of this Agreement.

i) COUNTERPARTS; ELECTRONIC SIGNATURES. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute a single agreement. The Parties agree that electronic signatures and electronic delivery shall be valid and enforceable to the fullest extent permitted by the Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.) and applicable state law. If the dates set forth at the end of this document differ, this Agreement shall be effective as of the date on which both Parties have signed, which may be the later date.

j) FORCE MAJEURE. Publisher shall not be liable for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, pandemics, and other acts due to unforeseen circumstances.

k) NOTICES; ELECTRONIC COMMUNICATIONS PERMITTED. Any notice to be given under this Agreement shall be in writing and shall be sent by first class mail, airmail, or email, to the address of the relevant Party set out at the head of this Agreement, or to the relevant email address set out above, or to such other address as that Party may from time to time notify to the other Party in accordance with this clause.

Notices sent as above shall be deemed to have been received three (3) working days after the day of posting (in the case of domestic first class mail), seven (7) working days after the date of posting (in the case of airmail), or the next working day after sending (in the case of email).

In proving the giving of a notice, it shall be sufficient to prove that the notice was left, that the envelope containing the notice was properly addressed and posted, or that the applicable means of telecommunication was addressed and dispatched and dispatch of the transmission was confirmed and/or acknowledged, as the case may be.

EXECUTION

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set forth below.

Publisher:

Name: ________

Title: ________

Signature: _________________________

Date: ________

Client:

Name: ________

Title: ________

Signature: _________________________

Date: ________