Agency/Advertiser Terms and Conditions - Version 01/05

ValueClick ChannelSearch (CPC) Campaigns

1. ValueClick Services.
This agreement, in conjunction with the corresponding Insertion Order, shall constitute Advertiser's, its clients' and agents' (herein collectively referred to as "Advertiser") understanding that ValueClick, Inc.'s ("ValueClick") sole obligation is to promote the Advertiser's product or services by showing banners, taglines, text links or email creative ("Creative") provided by the Advertiser on site(s) across the ValueClick Network or in email transmissions (the "Agreement"). The submission of a signed Insertion Order by Advertiser to ValueClick 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 ValueClick and the Advertiser. Advertiser agrees that ValueClick may, but is not obligated to, display Creative across the entire ValueClick advertising network or on specific site(s) and that daily Campaign activity begins at 12:01 AM Pacific Standard Time. ValueClick 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 ValueClick reserves the right to change rates.

2. Delivery Measurement Standards.
2.1 ValueClick will use commercially reasonable efforts to deliver the click-throughs stated in the Insertion Order in accordance with this Agreement and will use commercially reasonable efforts to deliver the click-throughs starting with the start date and ending with the end date set forth in this Insertion Order, and will make commercially reasonable efforts to spread such clicks evenly throughout the term of the Agreement unless otherwise instructed by Advertiser.
2.2 Unless otherwise agreed upon in writing, all invoices created by ValueClick for work performed and delivered shall be in accordance with measurement and tracking performed by ValueClick. ValueClick has adopted the IAB’s (Internet Advertising Bureau, http://www.iab.net) methodology for measuring clicks. Using this methodology, click delivery guarantees will be considered “met” when the clicks reported by ValueClick meet an Advertiser’s or representative agency’s insertion order.
2.3 For CPC campaigns that do not meet ValueClick’s minimum performance expectations, ValueClick reserves the right to pause the campaign following twenty-four (24) hours written notice to Advertiser. After notification, ValueClick will pause the campaign for a maximum of five (5) business days during which time Advertiser and ValueClick will work together to increase performance, including but not limited to testing new creative and/or changing rates. ValueClick will not make changes to original insertion order specifications or creative without Advertiser’s express written approval. If during or following the pause period ValueClick deems, at its sole discretion, that the campaign will not meet minimum performance expectations, ValueClick reserves the right to cancel Advertisers campaign following twenty-four (24) hour written notice to Advertiser. For Advertisers who pre-paid, ValueClick will credit Advertiser the unused portion of pre-payment, (i.e. the total pre-payment less the cost of what has been delivered.)
2.4 In the event that ValueClick has agreed to use Advertiser’s third-party measurements for billing purposes, Advertiser expressly acknowledges that ValueClick may use and consider Advertiser’s third-party measurements via their online reporting systems, or email confirmations from Advertiser’s representatives as a valid, accurate, and a final measurement of their campaign. Advertiser agrees that it will not dispute their third-party login data or data transmitted via email to ValueClick.

3. Payment, Credit and Cancellation Terms.
3.1 All invoices created by ValueClick for work performed and delivered to the Advertiser shall be based on ValueClick's measurements and shall be in accordance with measurement and tracking described in the "Delivery Measurement Standards" section. In addition, all payments will be based upon ValueClick's measurements and not based upon Advertiser, its clients, its agents or any third party's measurements.
3.2 All payments will be made in advance unless agreed upon otherwise or credit is approved and ValueClick is under no obligation to perform agreed upon services until payment is received. Upon approved credit, terms are Net 30 from date of invoice.
3.3 It is the Advertisers responsibility to validate all clicks. The Advertiser must report any discrepancies related to their campaign to ValueClick within fifteen (15) days of the occurrence. ValueClick is not liable for any discrepancies not reported within this time frame and Advertiser waives all right, title, and intent to dispute payment to ValueClick based upon any discrepancy not reported within this time frame. All discrepancies must be reported to ValueClick at billing@valueclick.com.
3.4 Either party may cancel this Agreement upon providing two (2) weeks written notice via email, fax or US Mail. If Advertiser terminates campaign early - payment in full for work performed and delivered up to the modified cancellation date will be owed and due and payable in full.
3.5 If Advertiser fails to pay overdue invoices for previous campaigns, ValueClick reserves the right to immediately terminate any active campaigns.
3.6 In the event Advertiser pays with credit card, Advertiser expressly agrees not to charge back on credit card account. Advertiser agrees to follow dispute resolution agreement as specified in section 10 and 3 herein.
3.7 All payments must be made in U.S. funds. Advertiser understands and agrees that in no event, and under no circumstance will data provided by any ValueClick representative constitute final billing numbers. Only Invoices mailed directly to Advertisers and Agencies are to be construed as representative of billable amounts.
3.8 Advertiser agrees that all cancellation notices must be submitted via e-mail and must include a CC: to terminationrequest@valueclick.com. All requests must be copied to this e-mail address to be considered valid. Furthermore, cancellation requests not copied to this address will not be considered valid and the Advertiser will be liable for all payments due.
3.9 In the event that ValueClick has agreed to use Advertiser’s third-party measurements for billing purposes, Advertiser expressly acknowledges that ValueClick may use and consider Advertiser’s third-party measurements via their online reporting systems, or email confirmations from Advertiser’s representatives as a valid, accurate, and a final measurement of their campaign. Advertiser agrees that it will not dispute their third-party login data or data transmitted via email to ValueClick.
3.10 ValueClick agrees to stop the Advertisers campaign temporarily (“Pause”) with a written request from the Advertiser. ValueClick will accept one (1) Pause request per campaign Insertion Order's flight dates and will extend the Pause for a maximum of seven (7) days. If Advertiser does not make further contact with ValueClick, following a Pause request, ValueClick will automatically restart the Paused campaign and continue to deliver agreed upon leads, impressions, or clicks. If Advertiser wishes to terminate the campaign early, Advertiser agrees to abide by the cancellation procedures set forth within these Terms and Conditions. Any cancellation notice will be based on the date the written notice was received by ValueClick. ValueClick will not accept the Pause period as a part of cancellation. If Advertiser cancels campaign during Pause period Advertiser agrees to pay for any leads, impressions, or clicks, delivered during the remaining cancellation notice period, based on daily averages prior to Pause.

4. Creative Standards.
4.1 All advertisements are subject to ValueClick’s approval. ValueClick 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. ValueClick may reject any Creative that ValueClick feels is not in keeping with reasonable standards outlined herein. ValueClick is not liable for errors in Creative position and/or placement, or typographic errors of any kind.
4.2 If Advertiser intends to provide ValueClick with Creative via 3rd party tags, Advertiser agrees to provide ValueClick 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 ValueClick's relationship with its publishers is damaged or lost as a result of a breach of this condition, ValueClick reserves the right to recover any and all monetary damages.
4.3 Advertiser agrees to login to their ValueClick account and confirm correct function of all creative supplied to ValueClick within twenty-four (24) hours of campaign start. If no confirmation is received within this time frame, ValueClick will assume that creative is functioning properly and Advertiser agrees to pay for all impressions and clicks derived from the creative as measured by ValueClick. All problems related to creative should be immediately brought to the attention of Advertiser's ValueClick account executive.
4.4 Advertiser hereby authorizes ValueClick to promote and distribute Advertiser's campaign via any electronic media (including website placement, search listing, and/or email marketing) as ValueClick in its discretion deems appropriate to meet Advertiser's performance objectives. Advertiser agrees to allow and/or assist ValueClick to alter, resize, or otherwise modify creative only as necessary for distribution through the various channels listed above.
4.5 Advertiser agrees and understands that if ValueClick is requested to retrieve creative for and on behalf of Advertiser, that ValueClick peforms this service solely as a courtesy to Advertiser, and as such ValueClick will not be liable for any errors, including but not limited to retrieving incorrect creative. Furthermore, Advertiser agrees to pay for all campaigns delivered for and on behalf of Advertiser, as defined in the insertion order, where ValueClick was requested to obtain creative from a location provided by the Advertiser.

5. Limitation of Liabilities.
VALUECLICK 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 VALUECLICK’S TOTAL OBLIGATIONS AND/OR LIABILITY CAN NEVER EXCEED THE CHARGE FOR THE ADVERTISEMENT IN QUESTION. EXCEPT AS EXPRESSLY SET FORTH HEREIN, VALUECLICK MAKES NO OTHER WARRANTIES TO ADVERTISER AND DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6. Indemnification.
6.1 All Creative has been accepted and published upon the representation that the Advertiser is authorized to publish the entire contents and subject matter thereof. Advertiser agrees to indemnify and hold ValueClick, its Publishers or List Providers and their respective affiliates, employees, officers, agents, directors and representatives (“ValueClick Indemnified Parties” or “VCIP”), harmless from all allegations, claims, actions, causes of action, lawsuits, damages, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys’ fees, costs related to in-house counsel time, court costs and witness fees) (collectively “Losses”) indemnify, defend, and save ValueClick harmless from any and all liability for any claim or suits for libel, defamation, violation of rights of privacy, plagiarism, attorney's fees, trademarks, copyright infringement, unauthorized content (including text, illustrations, representatives, sketches, maps, labels, or other copyrighted matter) contained in Creative or the unauthorized use of any person's name or photograph, arising from ValueClick reproduction and publishing of such Creative pursuant to Advertiser's submission.
6.2 Advertiser understands that ValueClick in due diligence cannot monitor all ValueClick Host sites for appropriate content and ValueClick may not be held responsible for the content of any Host site. If Advertiser reasonably determines that the placement of any advertisement by ValueClick hereunder harms the goodwill or reputation of Advertiser or disparages or brings Advertiser into disrepute, including, but not limited to association with web sites that contain indecent, illegal, misleading, harmful, abusive, harassing, libelous, defamatory, or other offensive materials, then ValueClick shall use commercially reasonable efforts to remove such advertisement promptly following Advertiser's notice thereof to ValueClick; provided, however, that if ValueClick reasonably believes that removal of an advertisement from a site will have a material impact on ValueClick’s ability to deliver advertisements in accordance with the Insertion Order, ValueClick may condition such compliance on Advertiser providing an extension of the flight dates.
6.3 Advertiser guarantees that data regarding consumers gained by this campaign will be only used for legal purposes and Advertiser will indemnify, defend and hold harmless the ValueClick Indemnified Parties from any and all losses, liabilities, claims, obligations, costs, expenses (including without limitation reasonable attorney’s fees) Losses which result from any claim of damages brought or sought against ValueClick VCIP that alleges consumer data gained by this campaign was used for any purpose in violation of any applicable laws. The indemnity obligations of this paragraph are contingent on VCIP ValueClick giving prompt written notice of any such claim. VCIP ValueClick will have sole control over the litigation or settlement of such claim. The provisions of this Paragraph shall survive the termination of this Agreement.

7. Force Majeure.
ValueClick 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 ValueClick’s control affecting production or delivery in any manner.

8. Confidentiality.
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 ValueClick 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 Advertiser’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.

9. Proprietary Relationships.
ValueClick has proprietary relationships with the publishers that make up the Network. With the exception of reasonably documented, preexisting relationships with direct publishers or networks or relationships entered into in the ordinary course of Advertisers business, Advertiser agrees not to solicit, induce, recruit or encourage, directly or indirectly, any publisher that the Advertiser 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 ValueClick, including, without limitation, the placement or hosting of advertising in any form without the express, written consent of ValueClick. Advertiser understands that in the event of a breach of the forgoing representations by Advertiser, ValueClick 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 ValueClick 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.

10. 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 California law without respect to conflict of law provisions. The parties further agree to submit to personal jurisdiction in the courts of the State of California 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.

11. Entire Agreement.
11.1 This Agreement, together with the Insertion Order(s) incorporated by reference, embodies our entire agreement, supersedes all prior oral and written agreements, and may not be amended or modified except by a writing acknowledged and accepted by both parties. This Agreement may be executed in any number of counterparts and facsimile copies, each of which shall be deemed an original, and all of which together shall be deemed one and the same instrument. In the event that any of the provisions included herein are held to be unenforceable, the remaining portions of the Agreement will remain in full force and effect. Any notice or report required or permitted by this Agreement shall be made by personal delivery or fax to then operating fax number or business address.
11.2 Failure of either party to require strict performance by the other party of any provision shall not affect the first party’s right to require strict performance thereafter. Waiver by either party of a breach of any provision shall not waive either the provision itself or any subsequent breach.

12. Press Releases.
Advertiser is willing to collaborate with press releases and/or be mentioned as a new client. If Advertiser is unwilling to participate in PR activity, please initial here ________ .

13. Survivability.
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.