1. Agreement
This Agreement, along with the accompanying and subsequent invoices (each, an “Invoice”) shall define the parties’ obligations and liabilities with respect to High Tide Media LLC’s (hereafter “HIGH TIDE MEDIA”) delivery or display of advertising campaigns and promotions on Advertiser’s behalf (each, a “Campaign” and collectively, the “Campaigns”). This Agreement is a material part of each and every Invoice generated by HIGH TIDE MEDIA. In the event of a conflict between this Agreement and any Invoice, the terms of this Agreement shall control.
2. Advertiser’s Campaign(s)
Creative Materials: Advertiser shall provide all creative and substantive materials required for marketing the Campaigns, including but not limited to: html emails, text emails, “Subject” lines, “From” lines, and any other components required by applicable law (“Creative”). To the extent HIGH TIDE MEDIA provides assistance in the development of Creative, such assistance shall be limited to creative assistance. Advertiser is solely responsible and liable for the Campaigns, any and all material to which consumers can link through the Campaigns, and any and all Creative utilized for marketing the Campaigns, even if HIGH TIDE MEDIA developed or assisted in the development of a Campaign or Creative. In the event HIGH TIDE MEDIA develops, or assists in the development of a Campaign or Creative (“Custom Creative”), Advertiser may only use the Custom Creative for incorporation into HIGH TIDE MEDIA’s mailing services. Advertiser may not use the Custom Creative for any other purpose, including but not limited to placement with any other mailer, publisher or affiliate network, without prior written authorization from HIGH TIDE MEDIA.
Advertiser agrees that HIGH TIDE MEDIA may make changes or alterations to the Creative or use any part of the html, images or URLs to deliver and/or generate traffic for the Advertiser. Additionally, Advertiser agrees that HIGH TIDE MEDIA may add special characters and/or emoticons to the Creative and Custom Creative. Advertiser agrees to confirm the correct function of all Creative supplied to HIGH TIDE MEDIA. If no confirmation is received, HIGH TIDE MEDIA will assume that the Creative is functioning properly and Advertiser agrees to pay for all. Advertiser hereby grants to HIGH TIDE MEDIA and its email service providers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Campaign(s) and related Creative in connection with its obligations hereunder.
Delivery of Campaigns: Without limiting the generality of the foregoing, HIGH TIDE MEDIA expressly reserves the right to, upon notice to Advertiser: (i) refuse any advertising request, cancel any Campaign, and/or change any Campaign or Creative that does not completely conform to every material detail, instruction, method, and guideline set forth by HIGH TIDE MEDIA; (ii) refuse any Creative that does not arrive three (3) business days prior to the broadcast date; (iii) refuse or cancel the use of any Campaign or Creative that it deems, in its reasonable discretion, vulgar, inappropriate or unlawful; and/or (iv) refuse at any time to publish or transmit any copy, photograph or illustration of any kind for any reason, including those that it believes, in its reasonable discretion, are an invasion of privacy, degrading, libelous, unlawful, profane, defamatory, obscene, pornographic, hateful, tend to ridicule or embarrass, are in bad taste, or which in its reasonable discretion infringe upon any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any third party. Once approved by Advertiser, HIGH TIDE MEDIA is not responsible for the coding or display (including the failure to display) of any Creative. HIGH TIDE MEDIA is not responsible for a broadcast going out later than the Advertiser’s desired broadcast date or time if Advertiser has not provided all necessary materials and approvals at least three (3) business days in advance. Advertiser understands and agrees that HIGH TIDE MEDIA will drive traffic to the desired websites and/or landing pages using owned, licensed and/or third party data. HIGH TIDE MEDIA reserves the right to enhance traffic for the Advertiser using any form of digital traffic available in-house or with third parties at any time. HIGH TIDE MEDIA is not responsible for complaints, blocked IP addresses, blocked or blacklisted domains, spam traps, domain or IP reputation, non-deliverables, or any other legal or business issues that might arise from the usage or broadcast of the data, domains, or IPs utilized.
Advertiser shall ensure that each email Creative contains: (i) a clear and conspicuous identification that the message is an advertisement; (ii) a valid, physical postal address for the “sender,” as the term is defined in the CAN-SPAM Act of 2003 (“Sender”); (iii) an Internet-based opt-out mechanism for the Sender that functions for at least thirty (30) days after the email transmission; and (iv) when provided, accurate “Subject” and “From” lines that are not deceptive or misleading or in violation of the California Business and Professions Code. Advertiser shall ensure that the Sender: (i) allows consumers to opt-out without requiring payment, information beyond a consumer’s email address, or any other obligation as a condition for accepting or honoring a consumer’s opt-out request, including but not limited to requiring a consumer to visit more than a single Internet web page; (ii) honors all opt-out requests within ten (10) business days of receipt of the request; and (iii) does not sell, lease, exchange, or otherwise transfer or release any email address for which it has received an opt-out request for any purpose other than compliance with the CAN-SPAM Act of 2003 or other provision of law. The Sender shall maintain a master suppression list that includes the email addresses of all users that have activated the Sender’s Internet-based opt-out mechanism or otherwise asked to be removed from the Sender’s email list(s). Advertiser shall provide such master suppression list (including updates) to HIGH TIDE MEDIA on a basis necessary to comply with applicable law in the format specified by HIGH TIDE MEDIA so that HIGH TIDE MEDIA and its email service providers may sync up their own suppression lists against the Sender’s suppression list.
Advertiser’s Website: Advertiser shall make commercially reasonable efforts to keep Advertiser’s website(s) generally available 24 hours a day, seven (7) days a week, and not listed on any spam-blocking databases. Advertiser shall promptly notify HIGH TIDE MEDIA in the event any website associated with a Campaign becomes listed on any spam-blocking database, such as the Spamhaus Project or SpamCop.
Tracking/Hosting: Advertiser acknowledges that HIGH TIDE MEDIA will provide the tracking solution for billing purposes.
3. Billing
Every broadcast will have an associated Invoice. Advertiser’s email approval of the Invoice or Creative for the applicable broadcast constitutes Advertiser’s approval and agreement to the terms of the Invoice, regardless of whether the Invoice itself is signed by Advertiser. Advertiser shall pay HIGH TIDE MEDIA within the number of days set forth in the applicable Invoice or, if no number is set forth in the Invoice, within fifteen (15) days after the end of the calendar month in which the broadcast occurred. Only invoices sent directly to Advertiser by HIGH TIDE MEDIA are to be construed as representative of billable amounts. Any late payments will accrue interest equal to the lesser of one-and-one-half percent (1.5%) per month or the maximum amount allowable under law, compounded monthly. Where payment is made by credit card, Advertiser expressly agrees not to charge back any amounts billed. Any and all transaction or processing fees imposed upon HIGH TIDE MEDIA by a credit card company or Advertiser’s bank will be passed through to Advertiser. HIGH TIDE MEDIA shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees and court costs) incurred in attempting to collect payment from Advertiser. Advertiser shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Agreement except for income taxes. HIGH TIDE MEDIA does not offer refunds of any type, under any circumstances.
4. Advertiser Representations and Warranties
Advertiser represents and warrants that: (i) it holds all necessary rights to permit the use of all Creative provided to HIGH TIDE MEDIA and all Custom Creative approved by Advertiser under this Agreement; (ii) the Campaign, Creative and Custom Creative, any materials to which users can link, and any products or services made available to users through the Campaign, Creative or Custom Creative do not and will not infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any third party; constitute, assist or encourage a criminal offense or otherwise create liability; or violate any local, state, national, or international law, rule, regulation, or FTC guideline; (iii) it has a reasonable basis for each and every claim made within the Campaign, Creative and/or Custom Creative and possesses appropriate documentation to substantiate such claims; (iv) all data shall be used in compliance with all applicable laws, rules and regulations and pursuant to Advertiser’s privacy policy, which shall be clearly and conspicuously disclosed to consumers and shall provide adequate notice, disclosure and choices to consumers regarding Advertiser’s collection, use and disclosure of consumer information; (v) Advertiser fulfills all commitments it makes to consumers in a timely manner in compliance with all applicable laws, rules and regulations; (vi) the price point for Advertiser’s product(s) or service(s) is within reasonable fair market value for such product(s) or service(s); (vii) Advertiser follows the refund/cancellation policies stated on its website or otherwise communicated to consumers; (viii) Advertiser’s customer support practices are reasonable and effective; (ix) no Campaign, Creative or Custom Creative is targeted to children under the age of thirteen (13); and (x) Advertiser will not load any computer program onto an individual’s computer without the individual’s express consent after receiving clear and conspicuous notice about the nature of the application to be downloaded. Any agency or broker executing this Agreement on behalf of its client represents and warrants that it has the authority to bind its client to the terms stated herein and remains jointly and severally liable for all obligations under this Agreement. Nothing contained herein will release Advertiser from any obligation or liability hereunder, and HIGH TIDE MEDIA may look to Advertiser for performance of all obligations under this Agreement.
5. Mutual Representations and Warranties
Each party represents and warrants to the other party that: (i) the signatory has the full right and authority to bind such party; (ii) it has the full corporate or organizational right, power and authority to enter into this Agreement and to perform the acts required of it; (iii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound, or any applicable law, rule or regulation; and (iv) each party shall render all services to the other party in a professional and commercially reasonable manner.
6. Indemnity
Advertiser agrees to defend, indemnify and hold harmless HIGH TIDE MEDIA, its parents, subsidiaries, affiliates, successors, assigns, partners, and their respective officers, directors, members, agents, employees, consultants, contractors, and attorneys (each, a “HIGH TIDE MEDIA Indemnified Party”), from all damages, liabilities, costs, and expenses actually incurred (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any demand, claim, proceeding, or investigation (each, a “Claim” and collectively, “Claims”) brought against any HIGH TIDE MEDIA Indemnified Party by a third party or parties or a government agency as a result of: (i) any actual or alleged breach of the terms of this Agreement, including Advertiser’s representations and warranties contained herein, or an associated Invoice; (ii) the marketing, sale, license, or use of Advertiser’s goods or services; (iii) any actual or alleged violation of an applicable law, rule, or regulation by Advertiser; or (iv) any other act, omission or misrepresentation by Advertiser.