Terms Of Service

Full Serve Advertiser Terms

THESE ADVERTISER TERMS AND CONDITIONS ("Agreement") govern the advertising services of AdParlor Media ULC, a British Columbia, Canada unlimited liability company with a place of business at 99 Spadina Ave. #401 Toronto ON, M5V 3P8 ("AdParlor"), which you ("Advertiser," "You," or "Your,") requested through an application tendered to AdParlor. AdParlor may, in its sole discretion, accept Your application and agree to provide the services described herein. The terms and conditions of this Agreement are fully incorporated into and integrated with the insertion order ("Insertion Order") You signed, and are applicable to all follow-on business you do with AdParlor, whether for modification of your first Insertion Order, or additional advertising campaign requests made from time to time by You and accepted by AdParlor.

1. DEFINITIONS

In addition to the definitions otherwise attributed within the body of this Agreement, the following terms are defined as follows:

Advertisement” or “Advertisements” means all written or graphically rendered marketing materials provided for in an Insertion Order (including but not limited to banners, text or graphic links, pop-ups, emails and newsletters or any other similarly designed advertising format);

Campaign” means the specifications and period upon which Advertisements will be placed by AdParlor as set forth in the applicable Insertion Order or follow-on request for additional services;

Clickthrough” is each time or instance a visitor clicks on an Advertisement;

Confidential Information” includes, without limitation, this Agreement, the Insertion Order, all information related to the Campaign, information pertaining to AdParlor’s Publishers and other Advertisers, marketing strategies, non-public financial and commercial information, trade secrets, and any communication between You and AdParlor stamped or marked “Confidential” or “Proprietary”;

Insertion Order” means an order document signed by Advertiser and tendered to AdParlor requesting specific Advertisements and/or Advertisement Campaigns; and

Service” or “Services” means the placement of the Advertisements provided by the Advertiser according to the applicable Insertion Order.

2. EFFECTIVE DATE AND TERMS.  This Agreement is effective upon transmission from AdParlor of a written confirmation that the initial Insertion Order is accepted. This Agreement will remain in effect until terminated as permitted herein.  The terms and conditions of the Insertion Order shall govern and control to the extent of any inconsistency between the terms set forth in the Insertion Order and this Agreement.

3. SCOPE OF SERVICE

    a. Design Services.  AdParlor will reasonably cooperate with Advertiser to develop a creative for the maximum effectiveness of Advertisements.

    b. Advertisement Modification.  Advertiser permits AdParlor, with Advertiser’s prior approval (email shall suffice), to change any Advertisement as deemed necessary in AdParlor’s reasonable judgment; provided, however, that where a change made is within the parameters of any restrictions or permissions set forth in an applicable, signed Insertion Order, no additional Advertiser approval is required.  Absent express notation in an Insertion Order, Advertiser is responsible for submitting all artwork, active URL's and active target site for each Advertisement in accordance with the requirements stipulated in the Insertion Order and AdParlor's other criteria, which may be provided to Advertiser on an as needed basis.

    c. Not Binding.  No Insertion Order or request for additional services are binding on AdParlor until Advertiser receives a copy of the Insertion Order signed by an authorized AdParlor officer or, in follow-on to an initial Insertion Order on file with AdParlor, Advertiser receives written acknowledgement and confirmation from AdParlor for the additional services (email shall suffice).  AdParlor may reject any Insertion Order or request for additional services or Services for convenience.

4. ADPARLOR PARTNERS.  Advertiser acknowledges and agrees that AdParlor may provide the Services directly and/or via third party partners which are wholly owned subsidiaries of Adknowledge, Inc., a Delaware, USA corporation which is the parent company of AdParlor.

5. CAMPAIGN TERM.  AdParlor will use commercially reasonable efforts to have Advertisements placed on the Campaign start date requested in the applicable Insertion Order, and unless terminated as provided in this Agreement, Advertisements will remain placed for the Campaign period designated in the applicable Insertion Order. Unless specifically prohibited in the applicable Insertion Order, AdParlor reserves the right to extend the Campaign in order to deliver the Advertisements in compliance with the specifications set forth in such Insertion Order.

6. CAMPAIGN MODIFICATIONS AND CANCELLATION.  Unless expressly prohibited in the applicable Insertion Order, Advertiser may terminate an Insertion Order or one or more Campaigns within an Insertion Order upon three (3) business days advance written notice to AdParlor. Unless prohibited in the applicable Insertion Order, Advertiser will continue to be responsible for all impressions, Clickthroughs or installations associated with all insertions under a Campaign until such termination is effective. AdParlor may terminate this Agreement, any Insertion Order or any Campaign for convenience upon written notice to Advertiser.

7. TRACKING. AdParlor may require that Advertiser install a tracking pixel which will be programmed by AdParlor with the criteria to track valid installations.  Advertiser is solely responsible for installation and use of any tracking pixel and may not make any modification to such tracking pixel.  Installations will be deemed valid as tracked by the tracking pixel.  In the event that the tracking pixel is not properly installed or of any unauthorized modification made by Advertiser, Advertiser shall have three calendar days to correct the same and notify AdParlor of such correction.  Advertiser can track all installations in real time on AdParlor’s advertiser control panel. Any reasonable determination of AdParlor as to the number of installations shall be binding on the parties absent manifest error on the part of AdParlor as reasonably demonstrated by Advertiser.

8. CONTENT.  AdParlor will not accept or place any Advertisement that, in AdParlor’s sole determination and discretion or in the discretion of any of its Publishers contains, promotes or links to  inappropriate content which includes, but is not limited to: content regarding use of alcohol, tobacco  or  illegal  substances;  nudity,  sex,  pornography, or adult-oriented content;  expletives  or  inappropriate  language;  content  promoting  illegal or unethical activity,  racism,  hate,  "spam,"  mail  fraud,  pyramid schemes, credit-repair or  advice  not  permitted under law; content that is libelous, defamatory, infringing, false, misleading, contrary to public policy, or otherwise unlawful; content which includes diversionary links, exit “pops” or any other element which distracts from the primary advertisement content; content which may bring AdParlor and/or its affiliated companies negative publicity, or any other content  deemed  inappropriate  by  AdParlor  in  its  sole  discretion.

9. PLACEMENT AND POSITIONING.  AdParlor will use reasonable commercial efforts to comply with the Advertisement specifications contained in the Insertion Order, including all placement requests. Advertiser hereby acknowledges and agrees that AdParlor does not control Advertisement placements, and cannot guarantee any particular Advertisements placement, nor its physical positioning on any website.  AdParlor reserves the right to reject, not publish, or not place any Advertisement at any time in its sole discretion.  A decision by AdParlor to not publish or not place any requested Advertisement does not constitute a breach of this Agreement nor otherwise entitle Advertiser to any legal remedy, provided an appropriate refund will be made for any prepayment by Advertiser for the applicable portion of the Campaign.

10. PAYMENT TERMS.  Advertiser agrees to pay to AdParlor the amounts as reported in AdParlor’s reporting portal.  All payments are due immediately upon receipt of each invoice; alternate or additional pre-payment or deposit terms may be indicated on the applicable Insertion Order.  Payments may be made to AdParlor via wire transfer or cheque.  Advertiser acknowledges that where any Insertion Order contains staged payments and any such payment is overdue, AdParlor is not required to continue to perform Services until all payments due are paid up to date. In addition to the foregoing, on any invoice that is not paid within three (3) business days after receipt, AdParlor may charge interest from such date to the date of payment (at 1½% per month, or the maximum rate allowed by law), plus reasonable attorney’s fees, disbursements and collection costs.

11. FORCE MAJEURE.  Neither party will be liable for failure or delay in performing any of its obligations if such failure or delay is due to circumstances beyond the party’s reasonable control, including, without limitation, accident, war, acts of God or any governmental body, failure of software, hardware or equipment of third-parties.  This section does not apply to the obligations of Advertiser to make any payment(s) when due.

12. WARRANTY DISCLAIMER.  THE SERVICE PROVIDED BY ADPARLOR, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ADPARLOR MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. ADPARLOR DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. ADPARLOR DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. ADPARLOR DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON ADPARLOR’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS. ADPARLOR WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.

13. ADVERTISER REPRESENTATIONS AND COVENANTS.  Advertiser represents, warrants and covenants that (a) Advertiser has the right and authority to permit the use, reproduction, distribution and transmission by AdParlor and its Publishers of the Advertisements and all other materials provided by Advertiser to AdParlor; (b) the Advertisements do not promote or make claims that are not easily provable, and Advertiser has sufficient substantiation for all claims made; (c) Advertiser is solely responsible for the substantive content of each Advertisement, and to the extent that AdParlor provides assistance in the development of a Campaign, such assistance shall be strictly limited to creative assistance. Advertiser represents and warrants that AdParlor is not a party to, and has no liability for, the content and claims in Advertiser's Advertisements; (d) Advertiser is not in violation of any obligation, contract, agreement, or law, by entering into this Agreement, by performing its obligations hereunder, or by authorizing and permitting AdParlor to perform its services hereunder. Advertiser has the unrestricted power and authority to enter into and perform its obligations under this Agreement; (e) the landing page for each Campaign (i.e., the Advertiser’s website page where a consumer is directed when the consumer clicks on the Advertisement, fills in a registration form, or takes a similar action) contains a prominent link to Advertiser’s privacy policy, which policy provides, at a minimum, (i) adequate notice, disclosure, and choices to consumers regarding Advertiser’s use, collection, disclosure, and security of their personal information; and (ii) complete compliance with all applicable laws, rules, and regulations with respect to online privacy (f) prior to loading any computer program onto an individual’s computer, including without limitation programs commonly referred to as adware but excluding cookies (provided that cookies are disclosed in Advertiser’s privacy policy), Advertiser shall provide notice to and shall obtain the express consent of such individual; (g) no spyware shall be loaded onto an individual’s computer as a result of clicking on an Advertisement; (h) no Campaign is targeted to children under the age of thirteen (13) and/or offers products or services that are illegal for minors to buy, possess, or participate in; (i) all consumer data collected pursuant to this Agreement shall only be used for legal purposes, and (j) the use, reproduction, distribution, or transmission of the Advertisements and any and all other materials provided by Advertiser to AdParlor shall not, and the Advertisements and any and all other materials provided by Advertiser to AdParlor do not, violate any foreign or domestic, federal, state, or local law or regulation, or any rights of any third party, including, but not limited to, any copyright, patent, trademark, trade secret, music, image, or other proprietary, property or contractual right, or constitute false advertising, unfair competition, invasion of privacy or rights of celebrity, or any other right of any person or entity.

14. LIMITATION ON LIABILITY. 

UNDER NO CIRCUMSTANCES WILL ADPARLOR, NOR ADVERTISER, BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF ADPARLOR OR ADVERTISER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE, PROFITS OR DATA ARISING FROM BREACH OF THIS AGREEMENT, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ADPARLOR’S WEB SITE) OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT.  

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL ADPARLOR’S AGGREGATE LIABILITY ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY YOU UNDER, OR IN CONNECTION WITH, THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

15. INDEMNIFICATION.  Each party will indemnify and hold harmless the other party from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by a party (and its’ successors and assigns) arising out of or relating to the other party’s breach of any provision or term of this Agreement. In addition Advertiser will indemnify and hold harmless AdParlor from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by AdParlor, and/or its’ Publishers arising out of or relating to (i) the content or subject matter of any Advertisement, Insertion Order or collateral information to the extent used by AdParlor or its Publishers in accordance with this Agreement (including, but not limited to, allegations that subject matter violates the rights of a third party, causes emotional or physical injury to any third-party is defamatory or obscene or violates any law, regulation or other judicial or administrative action); (ii) the Advertisers intellectual property, including but not limited to any infringement action, misuse, registration or non-registration. 

16.  RESTRICTIVE COVENANTS. (a) Each party agrees that, for a period of two (2) years from the receipt of any Confidential Information from the other party (“Disclosing Party”) hereunder, such party (“Receiving Party”) shall use the same means it uses to protect its own confidential proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of information received which is marked confidential or proprietary, or any similar designation (“Confidential Information”). The fact that Confidential Information is transmitted orally, shall be memorialized by the Disclosing Party and tendered to the Receiving Party within 120 days of the oral transmission. The obligations of each Receiving Party hereunder shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and generally available through no action or inaction of the Receiving Party.  Confidential Information does not include information that the Receiving Party can document (i) is or becomes (through no improper action or inaction of the Receiving Party or its Representatives (as defined below)) generally known by the public, (ii) was in its possession or known by it without restriction prior to receipt from the other party, or (iii) becomes available to it 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). Each party will be responsible for a breach of this Advertiser Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate with the other party in every reasonable way to help regain possession of such Confidential Information and prevent its future unauthorized use.

    (b) Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement and may only provide such Confidential Information to its respective directors and employees who have a “need to know” such Confidential Information and who have provided written assurance sufficient to ensure such directors’, and employees’ compliance with, or are otherwise obligated to honour, the terms of this Agreement or as required by law (provided prompt notice of such required disclosure is provided to the disclosing party prior to disclosure where permissible).

    (c) The parties agree and understand that a material breach of this Section 16 will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, be entitled to seek preliminary and permanent injunctive relief. 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.

17. ADVERTISER REPRESENTATIVE.  In the event this Agreement is being executed by an agency or other representative (“Agent”) on behalf of Advertiser, Agent hereby represents that it has all due authority to create a legally binding agreement on behalf of Advertiser and this Agreement shall be so binding.  Agent further agrees that it will be jointly and severally liable for any and all payments, damages and other liabilities under this Agreement to which Advertiser would be responsible. 

18. TERMINATION. AdParlor may terminate or cancel this Agreement at any time in its sole discretion, upon written notice to Advertiser (such notice may be in the form of electronic notification).  

19. GENERAL.

    a. Law and Venue.  Interpretation of this Agreement and resolution of any dispute between AdParlor and You arising under this Agreement shall solely and exclusively be governed by the laws of the State of California, USA as applied to agreements performed wholly within the State of California.  Any request for interpretation of or dispute resolution arising under this Agreement shall be solely submitted to a state or federal court located in Los Angeles, California, USA.

    b. Assignment.  Advertiser may not assign this Agreement without the prior written consent of AdParlor, which shall not be unreasonably withheld.  Any attempted assignment in violation of the preceding sentence shall be null, void and without effect.  This Agreement is binding on the successors and permitted assigns of each of the parties.

    c. Modification.  An Insertion Order may only be modified via written notice and the written agreement of both parties (such notice may be in the form of electronic notification).  Notwithstanding the foregoing, in the event any modifications requested to an Insertion Order are requested by Advertiser in writing, and such changes are subsequently implemented by AdParlor (with or without any other written confirmation), such modifications will be deemed accepted by both parties.  No modification will be effective to this Agreement unless made in writing and signed or acknowledged by both parties (email shall suffice).  

    d. Relationship.  AdParlor and Advertiser are independent contractors and agree that this Agreement does not establish any agency, joint venture or partnership between them.

    e. Waiver.  AdParlor's failure to object to any document, communication, or act of Advertiser will not be deemed a waiver of any of these terms and conditions and any waiver shall not be deemed to be a waiver of any subsequent defaults of the same or different nature.

    f. Severability.  If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of the Agreement, which shall remain in full force and effect. 

    g. Compliance with Laws.  Advertiser and AdParlor will comply with all applicable laws and regulations.

    h. Survival.  In the event this Agreement is terminated, the following provisions will survive such termination: Sections 12, 13, 14, 15, 16, 17 and 19.

Pulse Advertiser Terms

THESE ADVERTISER TERMS AND CONDITIONS, together with the Order (as defined below) (collectively, the "Agreement"), are a legally binding agreement between AdParlor Media ULC ("AdParlor"), a British Columbia corporation with a place of business at 99 Spadina Ave. #401 Toronto ON, M5V 3P8, and you (the "Advertiser," "You," or "Your,") on behalf of Your clients ("Client(s)"). The purpose of this Agreement is to set forth the terms and conditions upon which AdParlor will perform certain advertising services for Advertiser.

1.DEFINITIONS

In addition to the definitions otherwise attributed within the body of this Agreement, the following terms are defined as follows:

Advertisement” or “Advertisements” means all written or graphically rendered marketing materials created within the Pulse Advertising System.

“Campaign” means a Client advertising campaign.

Initial Term” has the meaning set out in Section 2.

“Order” means the order document specified as part of Your registration for the Service.

“Pulse” means AdParlor’s proprietary self-serve advertising optimization system which allows Advertiser to input Advertisements and campaign details for campaigns to be implemented on Facebook.  Pulse is offered in Standard and/or Pro versions, as specified in the Order.

Service” or “Services” means the version of Pulse specified in the Order and the associated services including optimization provided by AdParlor which places Advertisements on Facebook.

Term” has the meaning set out in Section 2.

2. EFFECTIVE DATE AND TERM.  This Agreement is effective upon the later of the two signature dates below. This Agreement will remain in effect for the duration set out in the Order unless it is terminated earlier in accordance with its terms (the “Initial Term”).  Upon the expiration of the Initial Term, this Agreement shall automatically renew on a monthly basis until either party provides notice of its intent to not renew the Agreement, in which case the Agreement will expire upon the end of specified monthly period.  The Initial Term and any renewal term(s) shall collectively be referred to as the “Term”.

3. SCOPE OF SERVICE

    a. Ad Placement:  AdParlor will allow Advertisers to use Pulse to place ads on Facebook as per the specifications the Advertiser            defines.

    b. Bid Optimization: In certain cases, when selecting certain optimization models in Pulse, AdParlor (or Pulse) will automatically    modify CPC or CPM bids on Facebook to work towards the optimization goal defined by the Advertiser. The Advertiser is responsible for paying all costs to Facebook related to such bid changes; subject to any maximums specified in the applicable Order or in the Pulse system.

    c. Advertisement Modification:  Advertiser agrees that AdParlor (or Pulse) may create new ads based on the best combinations of existing approved assets only if the Advertiser has selected to enable the ‘auto-creation’ engine.

4. CAMPAIGN MODIFICATIONS AND CANCELLATION.  Advertiser may terminate its usage of Pulse at any time by clicking on the ‘Close Account’ button. This will delete all ads created by Pulse directly on Facebook and within Pulse. Advertiser will be responsible for paying all associated fees, costs and expenses to Facebook and to AdParlor up until the point of closure of the account subject to any maximums set forth in any Order or in the Pulse system. AdParlor may also close the Advertiser’s account(s) at any time and for any reason whatsoever, or for no reason at all, in its sole discretion, by providing written notice thereof to Advertiser.

5. FACEBOOK ADVERTISING ACCOUNT PERMISSIONS. The Advertiser is required at all times to allow AdParlor and Pulse to access the associated Advertiser account on Facebook where the ads are being created. Advertiser cannot, at any time, disable this permission unless the account has been officially closed.  Advertiser must have and maintain a current and paid-up Facebook advertising account in order to use Pulse.

6. TRACKING. For certain cost models within Pulse, AdParlor may require that Advertiser install a tracking pixel which will be programmed by AdParlor with the intent to track valid conversions.  Advertiser is solely responsible for installation and use of any tracking pixel and may not make any modification to such tracking pixel.  AdParlor may base optimizations on the correct placement and firing of this pixel. In the event that the tracking pixel is not properly installed or if any unauthorized modifications are made by Advertiser, Advertiser will take full responsibility for the corresponding optimizations. Advertiser can track all conversions in real time in the Pulse control panel.

Collection and Use of Data.  AdParlor collects, and may use, solely for the purposes of performing its obligations in this Agreement, anonymous demographic data, transactional information, and other advertising information and data relating to Clients’ Advertisements.  AdParlor will not capture any personally identifiable information of users. AdParlor will use industry best practices to secure such data from loss or unauthorized access and use.

7. CONTENT.  AdParlor will not accept or place any Advertisement that is not in compliance with Facebook standards on their own accord. However, ads uploaded through Pulse by the Advertiser will be submitted to Facebook as is for the internal Facebook Ads approval process.

8. PLACEMENT AND POSITIONING.  AdParlor will use reasonable commercial efforts to comply with the Advertisement specifications as communicated by Advertiser, including all placement requests. Advertiser hereby acknowledges and agrees that AdParlor does not control Advertisement placements, and cannot guarantee any particular Advertisements placement, nor its physical positioning on Facebook.  

9. PAYMENT.   Advertiser acknowledges that it is responsible for payment for all Advertisements placed by Pulse on behalf of Advertiser. Advertiser agrees to pay to AdParlor a percentage, as defined in the Order, of Advertiser’s total actual spend on Facebook advertising using the Service during the Term of this Agreement.  All payments to AdParlor are due immediately upon receipt of each invoice; alternate or additional pre-payment or deposit terms may be indicated in the Order. All payments must be made to AdParlor via credit card, wire transfer or cheque. Advertiser hereby authorizes AdParlor to charge Advertiser’s credit card for amounts owed. Advertiser acknowledges that if a payment is overdue, AdParlor is not required to continue to perform services and may terminate your access to Pulse until all payments due are paid up to date.  Advertiser is responsible for paying to Facebook when due, all charges related to the Advertisements they create using Pulse.  AdParlor agrees to hold Advertiser liable for the foregoing fees solely to the extent proceeds have been paid to Advertiser from Client. For amounts not cleared to Advertiser, AdParlor agrees to hold the applicable Client solely liable. AdParlor understands and acknowledges that Client is Advertiser's disclosed principal and Advertiser, as agent, has no obligations relating to such payments, either joint or several. Advertiser agrees to make every reasonable effort to collect and clear payment from Client on a timely basis.

10. FORCE MAJEURE.  Neither party will be liable for failure or delay in performing any of its obligations if such failure or delay is due to circumstances beyond the party’s reasonable control, including, without limitation, accident, war, acts of God or any governmental body, failure of software, hardware or equipment of third-parties.  This section does not apply to the obligations of Advertiser to make any payments when due.

11. WARRANTY DISCLAIMER.  Except as otherwise provided in this Agreement or the applicable Order, THE SERVICES PROVIDED BY ADPARLOR INCLUDING WITHOUT LIMITATION, PULSE, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ADPARLOR MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. ADPARLOR DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. ADPARLOR DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF ANY RESPONDENT TO ANY ADVERTISEMENT. ADPARLOR DOES NOT GUARANTEE TO MATCH COLOURS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON ADPARLOR’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS. ADPARLOR WILL MAKE A REASONABLE EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.

12. REPRESENTATIONS AND COVENANTS.  Advertiser represents, warrants and covenants that: (a) Advertiser has the right and authority to permit the use, reproduction, distribution and transmission by AdParlor and its publishers (including Facebook) of the Advertisements and all other materials provided by Advertiser to AdParlor; and (b) the Advertisements comply with the terms of the Facebook advertising terms applicable to Advertiser.

AdParlor warrants that it has the right to enter into and perform its obligations under this Agreement.  AdParlor shall at all times conduct itself in a competent and professional manner in accordance with best industry practice.  AdParlor’s performance shall conform to the standards, criteria, specifications and procedures described in the applicable Order.  AdParlor further warrants that the Services and AdParlor’s proprietary materials furnished in connection with the Services including Pulse will not violate the proprietary rights of any third party, or otherwise violate any other laws, rules or regulations of the United States. 

13. LIMITATION ON LIABILITY.  UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE, PROFITS OR DATA ARISING FROM BREACH OF THIS AGREEMENT, THE SERVICES (INCLUDING, WITHOUT LIMITATION, PULSE) OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT.  

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL ADPARLOR’S AGGREGATE LIABILITY ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY YOU UNDER, OR IN CONNECTION WITH, THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

14. INDEMNIFICATION.  Advertiser will indemnify and hold harmless AdParlor from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by AdParlor arising out of or relating to a third party claim that Advertiser breached this Agreement. 

15. RESTRICTIVE COVENANTS. Except as allowed under applicable law, Advertiser will not reverse engineer Pulse or permit or assist any third party to use or access Pulse without AdParlor’s written consent.

16. CONFIDENTIALITY. (a) Advertiser and AdParlor agree that from the receipt of any Confidential Information (as defined below) from the other party (“Disclosing Party”) hereunder, the receiving party (“Receiving Party”) shall use the same means it uses to protect its own confidential proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of information received which is marked confidential, proprietary, or any similar designation  (“Confidential Information”). The fact that Confidential Information is transmitted orally shall be memorialized by the Disclosing Party and tendered to the Receiving Party within 120 days of the oral transmission. The obligations of each Receiving Party hereunder shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and generally available through no action or inaction of the Receiving Party. Confidential Information does not include information that the Receiving Party can document (i) is or becomes (through no improper action or inaction of the Receiving Party or its Representatives (as defined below)) generally known by the public, (ii) was in its possession or known by it without restriction prior to receipt from the other party,  (iii) becomes available to it from a source other than the other party or its Representatives having no obligation of confidentiality; or (iv) is independently developed by the Receiving Party without use of or reference to the Confidential Information. “Representatives,” when used with respect to either party, means that party’s affiliates, agents, officers, directors, consultants and employees. Receiving Party will be responsible for a breach of this Agreement by any of its Representatives. Receiving Party shall promptly notify Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate with the Disclosing Party in every reasonable way to help regain possession of such Confidential Information and prevent its future unauthorized use.

(b) The Receiving Party may use Confidential Information received from the Disclosing Party only in connection with and to further the purposes of this Agreement and may only provide such Confidential Information to its respective directors and employees who have a “need to know” such Confidential Information and who have provided written assurance sufficient to ensure such directors’, and employees’ compliance with, or are otherwise obligated to honour, the terms of this Agreement or as required by law (provided prompt notice of such required disclosure is provided to the Disclosing Party prior to disclosure where permissible).

(c) The parties agree and understand that a material breach of this Section 16 may cause the Disclosing Party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-Disclosing Party will, in addition to all other remedies, be entitled to seek preliminary and permanent injunctive relief. 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.

17. ADVERTISER REPRESENTATIVE.  In the event this Agreement is being executed by an agency or other representative (“Agent”) on behalf of Advertiser, Agent hereby represents that it has all due authority to create a legally binding agreement on behalf of Advertiser and this Agreement shall be so binding. 

18. TERMINATION. AdParlor may terminate or cancel this Agreement at any time in its sole discretion, upon written notice to Advertiser (such notice may be in the form of electronic notification).   Advertiser may terminate this Agreement at any time in its sole discretion upon written notice to AdParlor.  Termination by Advertiser shall not relieve Advertiser from payment of any amounts owing by Advertiser to AdParlor.

19. GENERAL.

    a. Law and Venue.  The laws of the State of New California, U.S.A. will exclusively govern any dispute between AdParlor and Advertiser, as applicable to contracts to be performed entirely within the State of California, U.S.A.  The parties hereby submit to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California, U.S.A. for all legal proceedings relating to or arising from this Agreement

    b. Assignment.  Advertiser may not assign this Agreement without the prior written consent of AdParlor.  This Agreement is binding on the successors and permitted assigns of each of the parties.

    c. Modification.  This Agreement may only be modified, or any rights under it waived, via written notice and the written agreement of both parties (such notice may be in the form of electronic notification).  No modification will be effective to this Agreement unless made in writing and signed by both parties.  

    d. Relationship.  AdParlor and Advertiser are independent contractors and agree that this Agreement does not establish any agency, joint venture or partnership between them.

    e. Waiver.  A party's failure to object to any document, communication, or act of the other party will not be deemed a waiver of any of these terms and conditions and any waiver shall not be deemed to be a waiver of any subsequent defaults of the same or different kind.

    f. Severability.  If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of the Agreement, which shall remain in full force and effect. 

    g. Compliance with Laws.  Advertiser and AdParlor will comply with all applicable laws and regulations in connection with their obligations under this Agreement.

    h. Survival.  In the event this Agreement is terminated, the following provisions will survive such termination: Sections 9, 11, 13, 14, 15, 16, 17, 18 and 19.
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