Terms and Conditions
1. PUBLISHER SERVICES. We offer several services to publishers (collectively, “Services”); use your Flytedesk publisher account to make selections regarding the Services you wish to use in the online Flytedesk publisher platform (the “Platform”).
1.1 Flytedesk National Services. “National Services” means the Flytedesk Services that enable you to monetize any media outlet or resource offered by your publication by running and displaying advertisements provided through Flytedesk to your readers and users. The National Services and the various options available to you are described on the Site.
1.2 Flytedesk Ad Shop. “Ad Shop Services” means the Flytedesk Services that enable you to create a custom web platform for advertisers to book campaigns with you directly and for you to collect related payments directly from advertisers. For more information regarding the Ad Shop Services or to sign up for the program, please visit your account in the platform.
1.3 Analytics Services. “Analytics Services” means the Flytedesk Service that enables you to view and analyze information through the Platform about how your readers and users interact with the Advertisements (as defined below) that you serve through the Services.
1.4 Verification Services. “Verification Services” means the verification and billing tools provided through the Platform or through the Flytedesk mobile app (the “App”) that allows you to quickly and efficiently verify each ad that you run or display in connection with the Services.
2. PUBLISHER OBLIGATIONS
2.1 Account Security. Once enrolled, you will be required to create a password-protected account in order to use our Services. Publisher accounts are personal to each Publisher, and may not be shared with or serviced by third parties. You are responsible for protecting the security of your publisher account and for any access to or use of it, whether or not specifically authorized by you. You agree to use industry-standard security practices to protect your publisher account credentials, and to notify us immediately of any unauthorized access or use or other security breach; we disclaim all liability, whether to you or any third party, that arises based on your breach of this Section
3.1 General. All payments will be made in U.S. dollars unless we have agreed in writing to use an alternate currency. Your receipt of timely payment depends on your provision to us of complete and accurate verification that the applicable advertisement has run, has been completed or been displayed. Unless otherwise agreed in writing, all verifications shall occur through the Verification Services as further described on the Site. We and you will each bear our own costs except as otherwise specified in this Agreement. You are solely responsible for and will timely pay all applicable taxes (e.g., value added tax, federal and state taxes, sales, use, excise, or transfer taxes) in connection with your use of the Services.
3.2 Commission. Unless otherwise agreed to in writing, Flytedesk will receive the following commissions for each advertisement sold in connection with your use of the Services: (i) for advertisements supplied by Flytedesk as remnant advertising on your website or application, forty percent (40%) of the agreed upon rate card price, as listed in the applicable insertion order; or (ii) for all other advertisements, twenty percent (20%) of the agreed upon rate card price, as listed in the applicable insertion order, for each Advertisement sold in connection with your use of the National Services. Flytedesk reserves the right to net any offsetting obligations from any payments owed to you hereunder. Flytedesk will be the system of record for all advertisements sold through the platform and any related tracking of impressions.
3.3 Payment Timing. All payments hereunder shall be due within fifteen (15) days of the receipt by Flytedesk of the associated revenue from the advertiser. Amounts under $5.00 may be held until amounts due equal or exceed $5.00.
3.4 Disputes and Errors. If you dispute in good faith the amount of any payment, you must notify Flytedesk in writing within sixty (60) days from the date of payment; failure to do so shall be deemed your acceptance of the amount paid and an irrevocable waiver of your right to dispute that payment. If Flytedesk identifies a payment error affecting you (whether over- or under-payment), then we will either (i) apply an offsetting adjustment to the next payment otherwise payable to you, or (ii) pay you (or, if applicable, require you to refund to us) the amount at issue.
4. INTELLECTUAL PROPERTY OWNERSHIP. As between the parties, and subject to the licenses expressly granted in this Agreement: we and our licensors own and will retain all right, title, and interest in and to our Services, including all related information and software (and improvements and updates).
5. CONFIDENTIALITY. Each of us agrees not to disclose the other’s Confidential Information, and to use it only to fulfill its obligations or exercise its rights under this Agreement. “Confidential Information” means information identified as “confidential” or “proprietary,” or that should reasonably be understood to be confidential. Flytedesk Confidential Information includes, but is not limited to: advertisements (before publication); our pricing, pricing structures, revenue, suppliers, customers, financial model, and methodologies. A party may disclose the other party’s Confidential Information to its officers, directors, employees, contractors, and/or advisors with a need to know, provided that they are under an obligation of confidentiality no less protective than this one. Confidential Information does not include information that was independently developed by the receiving party, that is or becomes publicly known without the receiving party’s fault, or that was lawfully received from a third party without breach of confidentiality. The receiving party may disclose Confidential Information without breach of this Section, if required by act of law or order, provided that it gives the other party prompt notice of the requirement before disclosure, limits disclosure as much as possible, and provides its reasonable assistance to the other party if it seeks to obtain an order to protect the information from public disclosure. Upon the disclosing party’s reasonable request or the termination of this Agreement, the receiving party will promptly return or destroy the disclosing party’s Confidential Information and upon request certify in writing its return or destruction.
6. TERMINATION. We reserve the right, in our sole discretion, to suspend your access to or use of our Services, in each case at any time and with or without notice, without liability to you. Either you or we may terminate this Agreement at any time for convenience by providing written notice. Termination does not relieve you or us of any obligation to pay amounts due and owing as of the termination date; that obligation survives termination.
7. MARKETING. You hereby grant us a royalty-free, fully paid up, sub-licensable, transferable, non-exclusive, worldwide, and perpetual license to reproduce, display, distribute, and otherwise use, in connection with our Services, the trademarks, service marks, logos or other indicia of origin associated with you and your publication(s) (your “Marks”), for the purpose of promoting you and your publication(s) in our advertising, marketing, promotions and promotional materials. You agree that we may use your Marks on our website to show your participation and use of our Services; for other proposed uses of your Marks, we will request your prior written approval.
8. REPRESENTATIONS, WARRANTIES, AND COVENANTS.
8.1 General. Flytedesk and Publisher, each acting on its own behalf, each represent and warrant that: (a) it has and will maintain all necessary rights, power, licenses and authority to enter into this Agreement, to perform the acts required of it under this Agreement, and to permit the other party to perform its obligations contemplated under this Agreement; and (b) it is and will remain in compliance with all applicable laws, statutes, ordinances, and regulations (including but not limited to, any relevant data protection or privacy laws) in the performance of its obligations under this Agreement.
8.2 By Publisher. You further represent, warrant, and covenant that: your performance under this Agreement does not and will not violate any contractual or other obligations between you and any third party.
9.1 Publisher Indemnity. Publisher will indemnify, defend and hold harmless Flytedesk and its affiliates, and their respective officers, directors, employees, agents, and contractors, from and against any third-party claims, allegations, losses, costs, liabilities, damages, penalties, settlements, judgments, fees and expenses (including without limitation reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or related to any actual or alleged: (a) breach by Publisher, including for purposes of this paragraph its affiliates or their respective officers, directors, employees, agents, or contractors, of any term(s) of this Agreement, including but not limited to its representations, warranties and covenants; (b) claims that your publication(s), application(s), or any other Publisher products, services, or software infringes any third party’s intellectual property rights, privacy, rights of publicity, or other rights; and (c) failure by Publisher to comply with applicable law.
9.2 Flytedesk Indemnity. Flytedesk will indemnify, defend and hold harmless Publisher and its officers, directors, and employees from and against any Losses arising out of or related to: (a) claims that the Services infringe any third party’s intellectual property rights, privacy, rights of publicity, or other rights; or (b) Flytedesk’s failure to comply with applicable law.
9.3 Indemnity Requirements. The indemnifying party reserves the right, at its expense, to provide the indemnified party with prompt written notice of its intention to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party (absent which, the indemnified party shall control such defense at the indemnifying party’s cost), and the indemnified party agrees to reasonably cooperate with the indemnifying party’s defense of such claims at the indemnifying party’s expense. The indemnifying party shall not enter into any settlement for which indemnity is sought unless: (a) such settlement includes an unconditional release of the indemnified party and its affiliates from all liability on all claims; and (b) the indemnified party gives its prior written approval, which shall not be unreasonably withheld.
10. DISCLAIMERS. WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, IN CONNECTION WITH OUR PROVISION OR YOUR USE OF OUR SERVICES, ANY ADVERTISEMENT, AND ANY OTHER FLYTEDESK PRODUCTS OR SERVICES, IN EACH CASE TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OUR SERVICES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTIES OF ANY KIND; THIS INCLUDES, WITHOUT LIMITATION, WARRANTIES OF PERFORMANCE AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, WE DO NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE OR WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, VIRUS-FREE, OR UNINTERRUPTED. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. WE DO NOT WARRANT OR GUARANTEE: (A) THE RESULTS OF USE OF OUR SERVICES, INCLUDING THAT PUBLISHER WILL EARN ANY PARTICULAR AMOUNTS (OR ANY AMOUNTS AT ALL); OR (B) THE RESULTS OF CONSULTING, DEVELOPMENT, OR OTHER SERVICES PROVIDED BY FLYTEDESK. Without limiting the generality of the foregoing, you acknowledge and agree that we are not responsible for any third-party products or services displayed, distributed or otherwise promoted through our Services, including the advertisements and the products or services so advertised. We neither represent nor endorse the quality, accuracy, reliability, integrity or legality of any third-party products or services, nor the truth or accuracy of the description of any advertisements, links, content, advice, opinions, offers, proposals, statements, data, or other information from any third-party products or services that are displayed, distributed, or otherwise used on or in connection with our Services.
11. LIMITATION OF LIABILITY. IN NO EVENT WILL FLYTEDESK BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST INCOME, REVENUE OR PROFITS, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS ARISING OUT OF THIS AGREEMENT, EVEN IF WE KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR MAXIMUM AGGREGATE LIABILITY IN RESPECT OF ALL LOSSES ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, WILL NOT EXCEED THREE HUNDRED DOLLARS ($300) USD. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU; IN SUCH CASES, FLYTEDESK’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THIS LIMITATION OF LIABILITY PROVISION IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECTS A FAIR ALLOCATION OF RISK. WE WOULD NOT PROVIDE OUR SERVICES WITHOUT SUCH LIMITATIONS, AND YOU AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY, DISCLAIMERS, AND EXCLUSIVE REMEDIES SPECIFIED IN THIS AGREEMENT ARE FAIR AND REASONABLE AND WILL SURVIVE EVEN IF OUR SERVICES, THIS AGREEMENT OR ANY ELEMENT OF IT IS FOUND TO HAVE FAILED IN ITS OR THEIR ESSENTIAL PURPOSE. BOTH PARTIES ACKNOWLEDGE AND AGREE THAT ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE RAISED WITHIN 12 MONTHS FROM THE DATE OF ITS ACCRUAL, OR IT SHALL BE FOREVER WAIVED. IF YOU ARE DISSATISFIED WITH ANY ASPECT OF THE Flytedesk SERVICES OR THIS AGREEMENT AT ANY TIME, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USING OUR SERVICES AND TERMINATE THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR FRAUD, FRAUDULENT MISREPRESENTATION, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
12. GOVERNING LAW AND DISPUTE RESOLUTION.
12.1 Governing Law. The parties agree that Colorado law governs this Agreement, without giving effect to its principles of conflicts of law, and to exclusive personal jurisdiction and venue in the state and federal courts in Denver, Colorado for any claims brought in court not arbitrated as set forth below.
12.2 Arbitration. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved by the parties, shall be finally settled by arbitration in Denver, Colorado, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive or other equitable relief without recourse to arbitration.
12.3 Individual Actions Only. EITHER OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF, AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER PARTIES.
12.4 Exceptions. The following are exceptions to the foregoing general agreement to arbitrate: (a) claims concerning intellectual property (i.e., patents, copyrights, moral rights, trademarks) and confidentiality (i.e., over Confidential Information or trade secrets); and (b) small claims, where jurisdiction and venue otherwise qualify for small claims court and where no equitable relief is sought. The parties agree to waive trial by jury in any litigation between them in court (e.g., if the arbitration provision is found unenforceable, or if the matter concerns one of the foregoing exceptions).
13. MISCELLANEOUS. This Agreement sets forth the entire agreement between you and us, and supersedes any and all prior agreements (whether written or oral) with respect to its subject matter. We can modify our Terms of Service; we will use commercially reasonable efforts to notify you (e.g., through your publisher account) before the effective date of the change. If you do not agree to the modification, you must stop using our Services. We reserve the right to modify, suspend, or discontinue our Services without notice and without liability to you or any third party. You cannot assign this Agreement without our prior written consent, and any attempt will be null and void. It is binding upon permitted successors and assigns, and there are no third-party rights unless expressly specified. You and we are independent contractors, not agents, representatives, or partners. Waiver of any breach of this Agreement will not constitute a waiver of any other breach, and will not act to reduce the rights of the waiving party. In the case of conflict between these Terms, the Publisher Guidelines, or an amendment, the order of precedence shall be the amendment, then the Publisher Guidelines, and then these Terms of Service. Preprinted terms on purchase orders or other transactional document are of no force or effect. Sections 3 (with respect to any payment obligations then existing), 4.3, 5 through 7, and 9 through 14 survive termination. Neither of us will be liable for failure to perform due to a cause beyond your or our reasonable control, respectively, including, without limitation, terrorism, fire, civil disturbance, war, rebellion, earthquake, flood and similar occurrences, provided that performance resumes as soon as commercially practicable after the cause no longer prevents performance. Headings are for convenience only and shall not affect interpretation. Notice to Flytedesk shall be made via email to firstname.lastname@example.org or to your Flytedesk account manager, where applicable; notice to Publisher shall be made to the email address in your publisher account. Emailed notice is effective as of the email date, absent receipt by the sender of a bounce back or error message or other direct indication of nonreceipt.
BEFORE USING THE ADVERTISING SERVICES (DEFINED BELOW), CAREFULLY READ THESE FLYTEDESK ADVERTISER TERMS OF SERVICE (THE “TERMS OF SERVICE”). BY CLICKING A BUTTON AND/OR BOX INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN ORDER OR OTHER FORM THAT REFERENCES THESE TERMS OF SERVICE, YOU AGREE TO THESE TERMS OF SERVICE. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THIS THESE TERMS OF SERVICE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, THEN YOU MUST NOT ACCEPT THESE TERMS OF SERVICE AND MAY NOT USE THE ADVERTISING SERVICE. Flytedesk, Inc. (“Flytedesk”) and the other entity on whose behalf these Terms of Service are entered (“Advertiser”) hereby agree as follows:
1 ADVERTISING SERVICES
1.1 Advertiser may use the Flytedesk online dashboard (the “Dashboard”) or another mutually agreed upon contracting mechanism, as applicable (each an “Order”), to set forth the details of the advertising campaign to be purchased by Advertiser (each a “Campaign”), which details may include among others: the desired media for advertisements (print, digital, out-of-home, etc.), the quantity of ad placements, the rate price per ad placement, the maximum budget allotted to the campaign, and the campaign dates. Any Order shall incorporate by reference these Terms of Service.
1.2 Advertiser will deliver the Advertisements (defined below) in accordance with the applicable technical specifications and sizing guidelines provided by Flytedesk, and Flytedesk will make commercially reasonable efforts to serve the Advertisements to the Inventory (defined below) in accordance with the applicable Order (the “Advertising Service”). As between the parties, Advertiser is solely responsible for any and all costs Advertiser incurs for the production and delivery of the Advertisements in accordance with the aforementioned technical specifications, unless otherwise agreed. Unless otherwise agreed, all creative required for any Advertisement must be submitted no less than five (5) days prior to publication for print, radio or digital advertising, or no less than thirty (30) days prior to the distribution date for out-of-home advertisements, including billboards and coasters. Advertiser is solely responsible for the content of any Advertisement, and Flytedesk will not make modifications or alterations thereto without Advertiser’s prior written consent except as required for or otherwise incidental to any technical implementation by Flytedesk of an Advertisement.
1.3 Advertiser acknowledges that the targets for delivery, and budget allocation between ad units are estimates and not guaranteed. Advertiser acknowledges that placement and promotion of Advertisements in any publication or other medium shall be, as between the parties, at Flytedesk’s discretion. In the event that an Advertisement is not run as requested for the applicable Campaign, is run incorrectly, or if an Advertisement is rejected by a Publisher (defined below) without cause, Flytedesk shall use commercially reasonable efforts to run the Advertisement in the same publication on another date during the Campaign or in a different, Advertiser-approved publication. If no other publication or approved advertising medium is available, Flytedesk will issue a credit to Advertiser as described in Section 5.3 below.
2 LICENSE. Unless otherwise agreed in writing, Advertiser hereby grants to Flytedesk the worldwide, non-sublicensable (except to the extent required by Flytedesk to fulfill the purposes hereof), non-exclusive, royalty-free, fully paid up, right and license to use, serve, copy, reproduce, distribute and display, the advertisements and all related content, materials and metadata submitted by Advertiser to Flytedesk (collectively, “Advertisement”) to the extent necessary for Flytedesk to provide the Services hereunder. In addition, Advertiser grants to Flytedesk a worldwide, non-exclusive, royalty-free, fully paid up, right and license to use, serve, copy, reproduce, distribute and display Advertiser’s name and logo in connection with providing the Services.
3 CREATIVE SERVICES. Advertiser may request consulting services from Flytedesk in connection with the design, layout, and other elements of the Advertisements (the “Creative Services” and collectively with the Advertising Services the “Services”). All Creative Services will be subject to a separate Order between the parties setting forth the scope of such services and the associated fees.
4 SERVICE CIRCUMVENTION; COMPETITIVE SERVICES
4.1 Advertiser acknowledges the unique value of using the Advertising Service to access the various types of advertising placement inventory on which Flytedesk has a contractual right to serve advertises (the “Inventory”). To this end, Advertiser will not (a) modify or interfere with the Advertising Service; or (b) knowingly bypass or circumvent the Advertising Service, including by engaging directly with any Flytedesk publishers or partners selling ad space or services through the Flytedesk Inventory (“Publisher”), to access their advertising inventory outside of the Advertising Services during the term of this Terms of Service.
4.2 Advertiser acknowledges that the Advertising Service is not available to entities that run, provide, enable or promote similar advertising services, whether for themselves or for others. Advertiser represents, warrants and covenants that it is not such an entity and that it shall not act, directly or indirectly, on its own behalf or on behalf of a third party, in such a capacity during the term of these Terms of Service.
5.1 Advertiser will pay Flytedesk for all verified Advertisements displayed during each Campaign. Flytedesk’s verification system will be the exclusive system of record for all reporting and calculations of fees owed and Flytedesk will use commercially reasonable efforts to provide verification images to Advertiser. All fees for Services are due in advance unless otherwise agreed to in writing by Flytedesk. Advertiser may be required to submit a credit application in order to be considered for other payment arrangements with Flytedesk. All fees shall be paid via wire transfer or check unless otherwise approved by Flytedesk. If Advertiser is approved for and elects to pay applicable fees with a credit card, Flytedesk will bill Advertiser’s credit card for all fees and Advertiser hereby authorizes Flytedesk to charge Advertiser’s credit card or to charge any form of payment Advertiser has obtained to replace its credit card. Advertiser will provide Flytedesk with accurate and complete billing information including legal name, address, telephone number, and possibly credit card or debit card billing information. If such information is false or fraudulent, Flytedesk reserves the right to terminate Advertiser’s use of the Services in addition to seeking any other legal remedies. Flytedesk is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by Flytedesk. Invoiced payments are due thirty (30) days after receipt of invoice.
5.2 If Advertiser, in good faith, disputes any amount due, then Advertiser shall provide notice to Flytedesk on or before the invoice payment due date. Advertiser acknowledges and agrees that failure to notify Flytedesk of disputed amounts within said 30-day time period shall be deemed acceptance of the applicable invoice and waiver of any right to dispute the invoiced amount. Flytedesk reserves the right to charge, and Advertiser agrees to pay, interest on amounts due but not paid in the time frame set forth above an amount equal to the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by applicable law.
5.3 Any pre-paid account balances are non-refundable and will be reduced to offset amounts owed as they are incurred, and Advertiser hereby consents to such right of offset. For all other amounts requiring adjustments, in lieu of cash payments, Flytedesk reserves the right to offer marketing credits in the form of non-monetizable and non-transferable credits issued for promotion through the Advertising Service. Such credits, if any, shall be Advertiser’s sole and exclusive remedy regarding any claim asserting non-fulfillment, in whole or in part, of an Order.
5.4 All amounts shall be invoiced and paid in United States dollars and do not include taxes that may be assessed by any jurisdiction or transmission fees that may be assessed by Advertiser’s banking institution, each of which shall be Advertiser’s sole responsibility. If withholding taxes or other taxes are imposed by any jurisdiction on the transactions made pursuant to these Terms of Service, Advertiser will promptly pay such taxes to ensure that Flytedesk receives the full amount invoiced to Advertiser without offset or deduction.
6 CONTENT. Advertiser acknowledges and agrees that Flytedesk is not responsible and has no liability whatsoever for the Advertisements, including where Flytedesk has provided any Created Services in connection therewith, or any content with which the Advertisements may be associated through Advertiser’s website or other properties, and that Flytedesk has no obligation to monitor the foregoing. Advertiser is solely responsible (and assumes all liability and risk) for determining whether or not such content is appropriate or acceptable. Notwithstanding anything to the contrary stated in these Terms of Service, Flytedesk and its Publisher’s reserve the right at its discretion and without notice, to remove or refuse to distribute any Advertisement through the Advertising Service or any content associated therewith.
7 COMPLIANCE WITH LAWS; MISUSE OF ADVERTISING SERVICE. Advertiser represents, warrants, and covenants that it will use the Advertising Service and provide Advertisements in compliance with all applicable local, state, national and international laws, rules and regulations, including the CAN-SPAM Act of 2003 and any laws regarding the transfer or transmission of data to the United States. Advertiser will not, will not agree to, and will not permit, authorize, or encourage any third party to: (a) use the Advertising Service to transmit or otherwise distribute any Advertisement or content that is unlawful, defamatory, libelous, harassing, abusive, fraudulent or obscene, that contains viruses, or is otherwise objectionable, as reasonably determined by Flytedesk; (b) interfere or attempt to interfere with the proper working of the Advertising Service or prevent others from accessing or using the Advertising Service; or otherwise (c) use the Advertising Service in a manner not expressly authorized hereunder or for any fraudulent or unlawful purpose. Breach or violation of any of the foregoing may result in immediate termination of these Terms of Service, at Flytedesk’s sole discretion, and may subject Advertiser to state and federal penalties and other legal consequences. Advertiser will promptly notify Flytedesk in writing if it learns of any potential breach of any of subparts (a) through (c) or of any potentially fraudulent or abusive activity. Without waiver of Advertiser’s obligations, Flytedesk reserves the right, without obligation, to review the Advertisements and Advertiser’s use of the Advertising Service in order to determine whether a breach of these Terms of Service has occurred or to comply with any applicable law, regulation, legal process, or governmental request.
8 REPRESENTATIONS, WARRANTIES AND COVENANTS. Without limiting any other representation, warranty, or covenant of either party herein, each party hereby represents, warrants and covenants to the other that: (a) it has the full right, power and authority to enter into and perform these Terms of Service; (b) these Terms of Service are a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the term of these Terms of Service all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations. Without limiting any other representation, warranty or covenant herein, Advertiser hereby represents and warrants that (i) it has the right to grant the rights granted herein; (ii) no Advertisement contains any material that infringes upon or violates any third-party right, including rights arising from contracts between Advertiser and third parties, copyright, trademark, class action, patent, consumer protection laws, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or slanders, defames, libels, or invades the right of privacy, publicity, or other property rights of any person; (iii) no Advertisement provided by it contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Advertising Service, or intercept or expropriate any system data or personal information from the Advertising Service; (iv) no Advertisement will be directed to children under the age of 13; and (v) any Advertisements directed to children aged 13 and older will comply with the guidelines of the Children’s Advertising Review Unit, or the applicable local equivalent where the Advertisements will be displayed.
9 INDEMNIFICATION. The Advertiser will indemnify, defend and hold harmless Flytedesk, any Publisher who displays an Advertisement, and each of their respective officers, directors, employees, and agents from and against any losses, costs, liabilities, damages, claims and expenses, including reasonable attorneys’ fees, arising out of (i) any breach of the representations, warranties and covenants made by Advertiser herein; or (ii) the publication or display of such Advertisements, including any for which Flytedesk provided Creative Services, in any medium, including without limitation, those arising from third-party claims or suits for defamation, copyright or trademark infringement, misappropriation, unfair competition, violation of the Lanham Act or any rights of privacy or publicity, or any unfair commercial practice or misleading advertising or impermissible comparative advertising or from any and all claims or regulatory breaches now known or hereafter devised or created. Advertiser may, at its expense, to assume the exclusive defense and control of any matter for which it is required to indemnify Flytedesk, and Flytedesk shall have the right to participate with counsel of its own choosing at its own expense. Advertiser will not enter into any settlement of any claim without the prior written consent of Flytedesk, such consent not to be unreasonably withheld or conditioned.
10 DISCLAIMERS; NO WARRANTIES.
10.1 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8 HEREIN, FLYTEDESK ON BEHALF OF ITSELF AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING OR TRADE USAGE, WITH RESPECT TO ANY MATTER, INCLUDING BUT NOT LIMITED TO: ADVERTISING; THE ADVERTISING SERVICE; AND ANY OTHER FLYTEDESK PRODUCTS OR SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR UNINTERRUPTED OR ERROR-FREE SERVICE. FLYTEDESK MAKES NO GUARANTEE REGARDING THE VOLUME OR TIMING OF ACTIONS IN CONNECTION WITH THE ADVERTISING SERVICE. FLYTEDESK DOES NOT WARRANT THE RESULTS OF USE OF THE ADVERTISING SERVICE, INCLUDING THE RESULTS OF ANY ADVERTISING CAMPAIGN, AND ADVERTISER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FLYTEDESK DISCLAIMS ALL GUARANTEES REGARDING POSITIONING, PLACEMENT, OR TIMING OF: (A) ADVERTISEMENTS’ DELIVERY ON SPECIFIC PUBLISHERS’ INVENTORY; OR (B) CONVERSION RATES, OR OTHER CONSUMER ACTIONS.
10.2 Advertiser acknowledges and agrees that Flytedesk is not responsible for any third-party products or services displayed, distributed or otherwise promoted in connection with the Flytedesk Advertiser Services, including without limitation, the Advertisements. Flytedesk neither represents nor endorses the quality, accuracy, reliability, integrity or legality of any third-party products or services, nor the truth or accuracy of the description of any Advertisements, links, content, advice, opinions, offers, proposals, statements, data or other information from any third party products or services that are displayed, distributed or otherwise used in connection with the Flytedesk Advertiser Services.
11 LIMITATION OF LIABILITY AND DAMAGES. UNDER NO CIRCUMSTANCES WILL FLYTEDESK OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, LOST PROFITS, DATA OR BUSINESS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, WARRANTY OR OTHERWISE), EVEN IF SUCH PARTY OR SUCH PARTY’S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL FLYTEDESK’S OR ITS AFFILIATES’ TOTAL LIABILITY TO ADVERTISER OR TO ANY OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT RECEIVED BY FLYTEDESK FROM ADVERTISER FOR THE ORDER TO WHICH THE CLAIM RELATES IN THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD. ADVERTISER SHALL NOT, AND HEREBY WAIVES THE RIGHT TO, COMMENCE ANY ACTION, SUIT OR PROCEEDING AGAINST FLYTEDESK MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM FIRST AROSE.
12 OWNERSHIP. As between the parties, Flytedesk owns and will retain all rights, title, and interest in and to the Advertising Service, including all software and data related thereto. Advertiser acknowledges that such software and data (including any usage data or compilations thereof but expressly not including any user information submitted to Advertiser through the Advertising Service) are copyrighted by Flytedesk and may contain trade secrets or other intellectual property owned by Flytedesk. Advertiser will not copy, alter, modify, or create derivative works of the Advertising Service or otherwise use the Advertising Service in any way that violates the restrictions contained in this Terms of Service. For the avoidance of doubt, Flytedesk does not grant to Advertiser any license, express or implied, to the intellectual property of Flytedesk or its licensors.
13.1 “Confidential Information” means all information of a party (“Disclosing party”) disclosed or made available to the other party (“Receiving party”) that (i) is clearly marked or identified as such at the time of disclosure or within a reasonable time thereafter; or (ii) should be reasonably known by the Receiving party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. Flytedesk’s Confidential Information specifically includes all Advertising Services software code and pricing terms.
13.2 The Receiving party will: (i) not use the Disclosing party’s Confidential Information for any purpose other than exercising its rights or performing obligations under these Terms; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees who have a “need to know” for the Receiving party to exercise its rights or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information.
13.3 If the Receiving party is required by applicable law or court order to make any disclosure of such Confidential Information, to the extent permitted by applicable law, it will first give written notice of such requirement to the Disclosing party, and permit the Disclosing party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing party in seeking to obtain such protection. Further, this Section will not apply to information which the Receiving party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving party; (iii) is rightfully obtained by the Receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving party who had no access to such information.
14 TERM TERMINATION
14.1 The term shall commence on the acceptance of these Terms of Service and continue until either party terminates these Terms of Service as set forth herein. Flytedesk may terminate these Terms of Service immediately upon written notice to Advertiser. Advertiser may terminate these Terms of Service upon thirty (30) days prior written notice to Flytedesk. For the avoidance of doubt, the termination of this Terms of Service shall also terminate any outstanding Orders between the parties.
14.2 In the event of any termination, Advertiser will remain liable for any and all amounts due under these Terms of Service through the effective date of termination, and such obligation to pay shall survive any termination of these Terms of Service.
14.3 The following sections of these Terms of Service shall survive expiration or termination of the Terms of Service for any reason: 4.1, 5, 6, 9-13, 14.2, 14.3, 15-20.
15 GOVERNING LAW. This Terms of Service shall be governed by and construed in accordance with the laws of the State of Colorado, U.S., without giving effect to principles of conflicts of law.
16 DISPUTE RESOLUTION/ARBITRATION. Please Read This Section Carefully – It May Significantly Affect Your Legal Rights, Including Your Right To File A Lawsuit In Court And To Have A Jury Hear Your Claims. Flytedesk and Advertiser agree that these Terms of Service affect interstate commerce and that the Federal Arbitration Act governs the interpretation of these arbitration provisions.
16.1 Informal Resolution. In the event of a dispute, claim, or controversy arising out of or relating to these Terms of Service (including with respect to their validity or enforceability), the Flytedesk Advertiser Services, any person’s or entity’s access to and/or use of the Flytedesk Advertiser Services, and/or the provision of content, products, services, and/or technology on or through the Flytedesk Advertiser Services, Flytedesk or you must first give the other notice of the dispute, claim, or controversy, and the notice must include a brief written statement that sets forth the name, address, and contact information of the party giving it, as well as the facts giving rise to the dispute, claim, or controversy and the relief requested. Notices must be made in accordance with Section 19 hereof. Flytedesk and you will attempt to resolve any dispute, claim, or controversy through informal negotiation within thirty (30) days from the date that any notice of dispute, claim, or controversy is sent. Flytedesk and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 30 days, Flytedesk or you may resort to the other alternatives described in this Section. Notwithstanding the foregoing, the notice and 30 day negotiation period required by this paragraph shall not apply to Excluded Claims as defined below. Nothing in this subsection 16.1 limits Flytedesk’s ability to suspend the Advertiser Services in the event of Problem Events.
16.2 Formal Resolution by Arbitration. Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between Flytedesk and you arising out of or relating to these Terms of Service (including with respect to their validity or enforceability), the Flytedesk Advertiser Services, any person’s or entity’s access to and/or use of the Flytedesk Advertiser Services, and/or the provision of content, products, services, and/or technology on or through the Flytedesk Advertiser Services, if unresolved through informal discussions within thirty (30) days of the sending of the notice described above, shall be resolved by binding arbitration to be held in Denver, Colorado, U.S. The arbitration shall be conducted by a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by these Terms of Service, and administered by JAMS. The JAMS Rules and fee information are available at https://www.jamsadr.com/ or at such other URL as JAMS may provide from time to time, or by calling JAMS at + 1-800-352-5267. The decision of the arbitrator will be in writing and binding and conclusive on Flytedesk and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Flytedesk and you agree that dispositive motions, including without limitation motions to dismiss and motions for summary judgment, will be allowed in the arbitration. The arbitrator must follow these Terms of Service and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. Flytedesk and you understand that, absent this mandatory arbitration provision, Flytedesk and you would have the right to sue in court and have a jury trial. Flytedesk and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
16.3 Excluded Claims. Notwithstanding the foregoing, disputes, claims, or controversies concerning (i) patents, copyrights, moral rights, trademarks, Confidential Information, or trade secrets; (ii) claims of piracy or unauthorized use of the Flytedesk Advertiser Services; or (iii) your failure to pay fees or the recovery of money owed by you to Flytedesk (collectively, “Excluded Claims”) shall not be subject to required arbitration. You or Flytedesk may choose to pursue a claim in small claims court where jurisdiction and venue over you and Flytedesk otherwise qualify for such small claims court and where the claim does not include a request for any type of equitable relief. If for any reason a claim, dispute or controversy between Flytedesk and you is before a court (e.g., if the arbitration provisions are found unenforceable or if pursuant to these Terms of Service the matter is not subject to arbitration), Flytedesk and you agree to exclusive personal jurisdiction and venue in the state and federal courts located in Denver, Colorado and agree to waive, to the fullest extent allowed by law, any trial by jury.
16.4 Applicability. This Section 16 will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Flytedesk, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms of Service (including with respect to their validity or enforceability), the Flytedesk Advertiser Services, any person’s or entity’s access to and/or use of the Flytedesk Advertiser Services, and/or the provision of content, products, services, and/or technology on or through the Flytedesk Advertiser Services.
17 MODIFICATION. Flytedesk may change these Terms of Service from time to time at its sole discretion, and if Flytedesk makes any material changes, Flytedesk will notify Advertiser by sending an email to Advertiser. Any material changes to these Terms of Service will be effective upon the earlier of thirty (30) calendar days following dispatch of an email notice to Advertiser or thirty (30) calendar days following posting of notice of the changes on the Flytedesk website. These changes will be effective immediately for new users of the Services. Flytedesk may require Advertiser to provide consent to the updated Terms of Service in a specified manner before further use of the Services is permitted. Otherwise, Advertiser’s continued use of the Services after the effective date of the new Terms of Service constitutes Advertiser’s acceptance of the changes.
18 FEEDBACK. All comments, feedback or materials submitted by Advertiser to Flytedesk including feedback, testimonials, images, reviews, questions, comments, suggestions or ideas (collectively, “Feedback”) shall be received and treated by Flytedesk on a non-confidential and unrestricted basis. Flytedesk will be free to use, display, perform, distribute, copy, adapt, and promote, in any medium now known or later developed, without compensation to Advertiser, the Feedback along with all ideas, concepts, know-how, techniques or methodologies contained in such Feedback, for any purpose whatsoever, including without limitation, developing, marketing and selling products and services incorporating such Feedback. Advertiser agrees that, in submitting Feedback, it will not violate any right of any third party, including any confidentiality, copyright, trademark, privacy or other personal or intellectual property or proprietary rights, and will not cause injury to any person or entity. Advertiser further agrees that no Feedback Advertiser submits will be or contain libelous or otherwise unlawful, threatening, abusive or obscene material, or contain viruses, commercial solicitations, or any form of “spam.”
19 NOTICES. Any notice provided pursuant to these Terms of Service shall be provided in accordance with this Section 19. Notices to Advertiser shall be sent by email to the address provided for Advertiser in the Dashboard or in the then most current Order. Notices to Flytedesk shall be sent by email to Advertiser’s Flytedesk account manager, with a copy to support@Flytedesk.com.
20 MISCELLANEOUS. The words “include” and “including” and variations thereof will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” These Terms of Service, and any rights and licenses granted hereunder, may not be transferred, or assigned by Advertiser without Flytedesk’s prior written consent, provided, however, that Advertiser may assign these Terms of Service without such consent to any entity (provided that it is not a competitor of Flytedesk) in connection with the merger, consolidation, sale of all or substantially all of its assets, or any other transaction in which more than fifty percent (50%) of Advertiser’s voting securities are transferred. Flytedesk may freely transfer or assign any or all of its rights and obligations associated with these Terms of Service at any time. These Terms of Service shall inure to the benefit of and be binding upon each party’s respective successors and assigns. Flytedesk and Advertiser are independent contractors, and neither Flytedesk nor Advertiser is an agent, representative or partner of the other. These Terms of Service set forth the entire agreement between Flytedesk and Advertiser, and supersedes any and all prior and concurrent agreements (whether written or oral) with respect to the subject matter hereof. In the event of any conflict or inconsistency between an applicable Order and these Terms of Service, the terms of the Order shall govern and control. The terms of any Order may only be modified upon mutual written agreement of the parties executed by representatives of each party, respectively; provided, however, that certain Order modifications, including modifications to bid price and campaign dates, shall be deemed effective upon email confirmation by Advertiser to Flytedesk. The waiver of any breach or default of these Terms of Service will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in these Terms of Service is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of these Terms of Service will remain in full force and effect. Neither party shall be responsible for failure to perform any obligations hereunder (other than the obligation to pay amounts due) due to a cause beyond its reasonable control, including, without limitation, terrorism, fire, civil disturbance, war, rebellion, earthquake, flood and similar occurrences, provided that performance shall resume as soon as possible after the cause no longer prevents performance. The use of headings herein is for convenience only and shall not be used to interpret these Terms of Service.