Advertising Services Terms & Conditions
Burn Media Co. (“The Company”) provides a range of advertising products and services for businesses (the “Advertising Services”). The Insertion Order (the “IO”) sets forth which Advertising Services are being purchased by Advertiser (“Advertiser”), the costs for such Advertising Services, and other relevant details of the proposed advertising campaign (the “Campaign”). These Advertising Services Terms and Conditions (“Advertising Terms”) shall be incorporated by reference into and made a part of any IO submitted to Burn Media Co. and govern the relationship between Burn Media Co. and Advertiser, together with the Product Terms (as defined below). All IOs are subject to acceptance by Burn Media Co., in its sole discretion. The IO, the Advertising Terms and the documents and/or links referenced in the IO are sometimes referred to as the “Agreement.”
The Advertising Services include, but are not limited to, the following:
Strike refers to Burn Media Co.’s standard paid social marketing product, where The Company promotes the Advertiser through various paid social channels.
Ignite refers to Burn Media Co.’s standard paid search engine marketing product, where The Company promotes the Advertiser through various search engines and their display networks.
Burn refers to Burn Media Co.’s standard paid search engine marketing & paid social marketing products, where The Company promotes the Advertiser through various search engines, social channels, and their display networks.
Custom solutions refers to Burn Media Co.’s custom built solutions. This will include a variety of products chosen by the Advertiser.
Advertising Placement and Location.
Burn Media Co. shall determine, in its sole discretion, on which online properties (the “Publishers”) the advertising content (“Ads”) will run during the course of any Campaign. Advertiser acknowledges that Burn Media Co. does not operate or control the Publishers – with the exception of its own proprietary online directory or other properties owned or operated by Burn Media Co. or its affiliates (the “Burn Media Co. Properties”). Advertiser further acknowledges that at any time during a Campaign, the Publisher mix may change. Burn Media Co. makes no guarantees about when or where the Ads will be displayed by the Publishers or by Burn Media Co.
Burn Media Co. will use commercially reasonable efforts to place Ads such that they will be seen by consumers in the target locales identified during the Campaign initiation process, but Burn Media Co. does not guarantee that Advertiser’s Ads will only be displayed in the target locales.
- Burn Media Co. Properties and Third Party Directories
Burn Media Co. may create and post online, in the Burn Media Co. Properties or the directories of third parties, profile page(s) for Advertiser, which may include the following information regarding Advertiser: name, phone number, email address, physical address, photos, videos, and information regarding the products or services of the Advertiser and Advertiser’s business (the “Local Profile”). Such Local Profiles may also include Tracking Services.
With respect to the Standard Advertising Services, upon receipt of an IO signed by Advertiser and acceptance by Burn Media Co. will initiate the process of setting up the Campaign. The duration of the Campaign (the “Campaign Period”) shall run from the Date of IO payment until the Actual End Date, unless earlier terminated by the parties as provided herein. The “Actual Start Date” refers to the actual commencement date of a IO funded. Advertiser acknowledges that Burn Media Co. may take up to ten (10) business days or longer to review and prepare the upon payment Campaign (or longer, if Burn Media Co. has been asked to provide creative services or if Burn Media Co. experiences technical difficulties with Advertiser’s Campaign) and may require further input from Advertiser before the Campaign is distributed to the Publishers. The Publishers may then take additional time to commence dissemination of the Campaign. Accordingly, the Actual Start Date may be later than the Estimated Start Date specified on the IO. Advertiser acknowledges that it may take more or less time to exhaust the Campaign Media due to, among other things, the scheduling and inventory constraints of the Publishers.
- Ad Content
Advertiser will deliver all content required for any Ad to Burn Media Co. If such content does not conform to Burn Media Co. or any Publisher’s specifications, then Burn Media Co. or the Publisher may, in its sole discretion, modify or reject such Ad to meet Publisher or other technical requirements or to address Campaign performance issues. Advertiser acknowledges that it may be limited in its ability to make further modifications to its Ads after they have been delivered to Burn Media Co. The acceptance of an Ad does not constitute approval or endorsement of the Ad by Burn Media Co. or by any Publisher, for purposes of this Agreement or otherwise.
- Tracking Services
Burn Media Co. shall provide such of the Tracking Services, as it deems appropriate, in its sole discretion, to enable Advertiser to assess the performance of any Campaign. Burn Media Co. shall provide any of the three options, as set forth on the IO: Web Tracking, which shall include Offer Page Tracking, Destination Page Tracking, Web Event Tracking and eMail Tracking; Phone Tracking; or Web Tracking and Phone Tracking.
- Tracking Services Data Retention
Advertiser acknowledges that Burn Media Co. is not obligated to keep and maintain any data obtained as the result of the Tracking Services for more than 30 days after the collection of any such data (including Call Recordings and Web Events)
- Implementation of Tracking Services.
In order to implement the Tracking Services, Advertiser hereby permits Burn Media Co. to deploy any additional code, within reasonable effort, In connection with the implementation of the campaign, Burn Media Co. may, but is not obligated to, do any or all of the following:
a. Deploy click tracking code to track the pages that users may access as a result of the Campaign. Burn Media Co. or its Publishers may place cookies or similar online tools to enable Burn Media Co. to determine effectiveness of advertising, when applicable, and enable Burn Media Co. or its Publishers to show a consumer Ads of Advertiser as the consumer navigates to third party Websites. Advertiser acknowledges that such cookies may be used for the benefits of both Advertiser and for third parties.
Advertiser agrees to pay in the amounts set forth in the IO:
- Budget Per Cycle Payment refers to the aggregate recurring fees for each Campaign Cycle, as specified in the IO, such as the Campaign Media and the CMT Fees (as defined below).
- Service Fees per Cycle Campaign refers to the recurring fees per Campaign Cycle charged by Burn Media Co. for managing and tracking Campaigns.
- Campaign Set-Up Fee refers to a one-time fee for the set-up of a Campaign, which includes, but is not limited to, Publisher set up, keyword generation, phone tracking set-up, creative services and other similar set-up requirements. With respect to Ignite, the Campaign Set-Up Fee also includes a review of the Campaign within the first sixty (60) days of the Campaign.
- Cancellation Fee: see section 4 under Term/Termination
Burn Media Co. reserves the right to change any of the foregoing fees at any time, provided that such changes will not take effect until a new IO has been executed and delivered to Burn Media Co. by Advertiser.
- No Pass-Through Obligations. Advertiser is not entitled to any credits, discounts, rebates, refunds provided to Burn Media Co. by Publishers.
- Promotional Credits. If Burn Media Co. offers any special promotions which provide Advertiser with credits or other fee reduction incentives in connection with signing an IO (the “Promotional Credits”), if Advertiser cancels the Insertion Order, then in addition to any other cancellation penalties Advertiser may be subject to, Advertiser will be required to repay to Burn Media Co. the full amount of the Promotional Credit or incentives.
Once an IO has been accepted by Burn Media Co., Advertiser will be responsible for payment in full of all fees set forth therein. All payments due hereunder are in U.S. dollars and are exclusive of any sales, use or similar applicable taxes, which shall be the sole responsibility of Advertiser.
- Manner and Timing of Payment
Advertiser may pay for all amounts payable under this Agreement by credit card (the “Advertiser’s Card”) or ACH (electronic debit from Advertiser’s bank account). If paying by credit card or ACH, Advertiser will be required to sign and comply with the applicable payment authorization forms. Prior to the initial Campaign Cycle, Advertiser shall pay the Cycle Payment for the initial Campaign Cycle and the Campaign Set-Up Fees, if applicable. In advance of each subsequent Campaign Cycle, Advertiser shall remit the Cycle Payment. In order to avoid any pauses in the Campaign, Burn Media Co. may, in the case of the Standard Advertising Services, charge Advertiser’s Card or cause payment to be made through ACH for the upcoming Campaign Period when 85% of the Campaign Media for the current Campaign Period has been exhausted, and in the case of other products and services, Burn Media Co. may charge Advertiser’s Card or cause payment to be made by ACH within seven (7) days prior to the expiration of the applicable Campaign Cycle. Advertiser understands and acknowledges that all amounts owed must be paid in advance of each Campaign Cycle and that, in addition to being in breach of its contractual obligations, Advertiser’s Campaign may be paused or terminated if timely payment is not made. If Advertiser has authorized payment by Credit Card or ACH, such authorization permits Burn Media Co. to recover any Promotional Credits (as set forth above) and collect any Cancellation Fees (as defined below) in the authorized manner.
The initial term of the Agreement shall be the Campaign Period set forth on the IO.
- Termination by Burn Media Co.
may terminate this Agreement and any Campaign immediately without notice and without cause.
- Termination by Advertiser for Cause
Advertiser may terminate this Agreement on thirty-one (31) days prior written notice (the “Notice Period”) if Burn Media Co. is in material breach of its obligations hereunder and such breach has not been materially cured by the conclusion of the Notice Period.
- Termination by Mutual Agreement.
If Advertiser and Burn Media Co. agree to early termination of a Campaign, Advertiser shall be obligated to pay a cancellation fee (the “Cancellation Fee”) of two full Cycle Payment. Burn Media Co. may charge Advertiser’s Card or shall be permitted to cause payment to be made through ACH. No termination under this section shall take effect until the Cancellation Fee has been paid, meaning that Burn Media Co. may continue the Campaign, and Advertiser shall continue to be obligated to pay for the Campaign.
- Campaign Pauses
Advertiser may request a pause in a Campaign. However, it shall be in Burn Media Co.’s sole discretion to determine if a Campaign pause is appropriate. If a Campaign is paused for more than 30 days, Advertiser will have to pay an additional Campaign Set-Up Fee to restart the Campaign.
- No Refunds.
Advertiser understands and agrees that Advertiser will not be entitled to any refunds of amounts already paid to Burn Media Co.
- Collection of Amounts Owed.
Any amounts not paid by Advertiser when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Advertiser agrees to pay all costs of collection (including attorneys’ fees and costs and all other legal and collection expenses) incurred by Burn Media Co. in connection with its enforcement of its rights under the Agreement.
- Effect of Termination; Survival.
Advertiser understands and acknowledges that due to the nature of the Internet, certain information regarding Advertiser that was posted on the Internet as part of the Advertising Services, including, for instance, the Local Profile, may continue to be available from the Internet following termination of any Advertising Services and/or this Agreement. All provisions of this Agreement that by their sense or nature should survive termination of this Agreement (including, without limitation, all limits of liability, indemnity obligations, and confidentiality obligations) shall so survive. Without limiting the generality of the foregoing, in the event of any termination, Advertiser shall remain liable for any amounts due to Burn Media Co. as of the effective date of termination.
Advertiser Representations, Warranties and Covenants
Advertiser is solely responsible for any liability arising out of or relating to the Existing Site, any Ad or any content provided by Advertiser hereunder and any material to which users can link through such Ad (“Linked Content”). Advertiser represents, warrants and covenants that the Existing Site, the Ads and Linked Content, and any portion thereof, do not and will not: (a) infringe on any third party’s copyright, patent, trademark, trade secret, moral right or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. Advertiser further represents, warrants and covenants that the product or service that is being (or will be) promoted through any Campaign including any Ad and Linked Content is (x) lawful and (y) not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities.
Advertiser will indemnify, defend (with counsel reasonably acceptable to Burn Media Co.) and hold harmless Burn Media Co., the Publishers, their subsidiaries, affiliates and parent companies and each of their respective directors, officers, agents and employees and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys’ fees and expenses) incurred in connection with any claim, action or proceeding arising from or relating to: (i) any breach by Advertiser of any representation, warranty, covenant or other obligation contained in these Advertiser Terms or in any of the Product Terms; (ii) the violation of any rights of any third party, including intellectual property, privacy, publicity or other proprietary rights by Advertiser or anyone using Advertiser’s account; (iii) the sale, license or provision of Advertiser’s goods or services; (iv) Advertiser’s use of Competitive Keywords;
Advertiser represents and warrants that, in the event it is purchasing advertising on behalf of another company, it has been authorized by each such company to act as its agent in all respects relating to this Agreement, including, without limitation, the making of any elections or giving of any consents. Without limiting the generality of the foregoing, Advertiser agrees on behalf of each such company that such company has been made aware of, and agrees to be bound by, these Advertising Terms. Advertiser and each such company shall be jointly and severally liable for fulfillment of Advertiser’s obligations under this Agreement, including all payment obligations.
Except as may be required by applicable law, Advertiser shall not disclose the contents of this Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without Burn Media Co.’s prior written consent. Except as otherwise expressly herein permitted, no party may issue a press release concerning the existence or terms of this Agreement without the prior written consent of the Burn Media Co In addition, except as may be required by applicable law, Advertiser may not disclose any Confidential Information regarding Burn Media Co.. “Confidential Information” means information about Burn Media Co.’s (or its suppliers’) business, products, technologies, strategies, financial information, operations or activities that is proprietary and confidential, including without limitation all business, financial, technical and other information disclosed by Burn Media Co. Confidential Information will not include information that Advertiser can establish is in or enters the public domain without breach of this Agreement.
DISCLAIMER OF WARRANTIES.
BURN MEDIA CO. PROVIDES THE ADVERTISING SERVICES PERFORMED HEREUNDER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD OR OTHER ADVERTISING PRODUCTS OR SERVICES. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD OR OTHER ADVERTISING PRODUCTS OR SERVICES, BURN MEDIA CO.’S SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS PRACTICABLE. BURN MEDIA CO. DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. BURN MEDIA CO. WILL HAVE NO LIABILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION; (ii) CLAIMS RELATING TO BREACH OF INTELLECTUAL PROPERTY LAWS OR DEFAMATION; (iii) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM ADVERTISER’S ACCESS TO OR USE OF THE OFFERINGS; (iv) UNAUTHORIZED ACCESS TO OR USE OF BURN MEDIA CO.’S SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (v) INTERRUPTION OF TRANSMISSION TO OR FROM THE BURN MEDIA CO.’S SERVICES; (vi) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE BURN MEDIA CO.’S SERVICES BY ANY THIRD PARTY; (vii) LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE BURN MEDIA CO. SERVICES; OR (viii) MATTERS BEYOND ITS OR THEIR REASONABLE CONTROL. BURN MEDIA CO. DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE OFFERINGS OR ANY LINKED WEB SITE.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ADVERTISER FROM BURN MEDIA CO. OR THROUGH THE BBURN MEDIA CO. SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE ADVERTISING SERVICES TERMS.
Without limiting the generality of the foregoing, Burn Media Co. makes no guarantees with respect to the performance or placement of any Ad or Campaign.
LIMITATIONS OF LIABILITY.
- NO CONSEQUENTIAL DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING EXCLUSION OF LIABILITY WILL NOT APPLY TO (I) ADVERTISER’S INDEMNIFICATION OBLIGATIONS, INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION THEREWITH; (II) TO ADVERTISER’S CONFIDENTIALITY OBLIGATIONS AND (III) ADVERTISER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
- LIMITATION ON DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL BURN MEDIA CO.’S CUMULATIVE, AGGREGATE LIABILITY TO ADVERTISER OR ANY THIRD PARTY EXCEED THE AMOUNTS RECEIVED BY BURN MEDIA CO. HEREUNDER DURING THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY. IN LIEU OF REFUND, Burn Media Co. SHALL BE PERMITTED, IN ITS SOLE DISCRETION, TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, PROVIDED SUCH “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to Advertiser. To the extent Burn Media Co. may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Burn Media Co.’s liability will be the minimum permitted under such law.
- Timing of Claims
Advertiser agrees that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be filed within one year after such claim or cause of action arose or be forever barred; provided that this section shall not in any way limit the time in which claims for infringement or misappropriation of intellectual property rights may be brought.
Each party acknowledges that the other party has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
- Entire Agreement/Amendment
This Agreement (which includes the IO, all applicable Product Terms and any payment authorization forms) sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. It may be changed only by a writing signed by both parties.
Any written notices to Burn Media Co. required under this Agreement shall be provided by registered mail with proof of delivery to Brun Media Co.’s then current corporate headquarters address (as shown on http://www.burnmediaco.com), Attn: General Counsel. Notices shall be deemed delivered 72 hours after posted in the mail.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
Advertiser may not assign this Agreement without the prior written consent of Burn Media Co.. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns.
- Independent Contractors
The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement.
- Force Majeure
Neither party shall have any liability for any failure or delay (other than with respect to payment obligations) resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.