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TURN INC. ADVERTISING AGREEMENT
This Turn Inc. Advertiser Agreement ("Agreement"), and all updates thereto, dated the date the user accepts this Agreement ("Effective Date") is made by and between Turn Inc., a company incorporated in Delaware with offices at 1600 Seaport Boulevard, Suite 300, Redwood City, California 94063 ("Turn") and user ("Company").
WHEREAS, Turn develops and maintains a network of advertisers and publishers, and related technology to direct advertisements and links from participating advertisers to the websites of participating publishers ("Program");
WHEREAS, Company wishes to access Turn's Program in order to have the opportunity to make its advertisements available to be served on Publisher Websites;
NOW THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.1 "Action(s)" means activity regarding an Ad selected by Company in the Turn Bidded Marketplace, which activity results in payment by Company to Turn (e.g., conversion of a click to a sale, delivery of an impression, etc.).
1.2 "Ads" means the advertisement creative that Company creates or provides to Turn including written content, images, graphics, URLs, and the content and material included in these components.
1.3 "Ad LineItem" means the Ad-targeting information Company creates via the Turn Bidded Marketplace to assist with the targeted delivery of an Ad.
1.4 "Publisher Websites" means the publisher websites that are aggregated by Turn on which Ads may be served.
1.5 "Turn Bidded Marketplace" means part of the Turn system to which Program participants have access to create Ads, Ad LineItems, and to use the Turn Program advertising services.
3. LICENSE. To allow Turn to serve Company's Ads on the Publisher Websites, Company grants Turn an unlimited, non-exclusive, fully transferable, worldwide, royalty-free, fully paid right and license to use, reproduce, modify, create derivative works from, distribute, perform, transmit, and display the Ads including in multiple, different-size layouts pursuant to this Agreement. Turn disclaims all liability relating to or arising from Company's Ads and Ad LineItems. Company is solely responsible for its Ads and Ad LineItems, any services and products it offers through its Ads and Ad LineItems, and any websites that can be linked to from its Ads and Ad LineItems. Company may cancel an Ad LineItem effective within approximately 24 hours of its cancellation notice. Turn may, in its discretion, reject or remove any of Company's Ads from the Turn Bidded Marketplace or Publisher Websites at any time.
4. DATA RIGHTS. Company has the sole and exclusive right to use all data derived from its use of the Turn Bidded Marketplace, for any purpose related to its business; provided that Turn may use and disclose data derived from Company�s use of the Turn Bidded Marketplace solely (i) as part of its business operations, to disclose aggregate statistics about the Turn Bidded Marketplace in a manner that prevents individual identification of Company information; (ii) to the extent necessary to operate, manage, maintain and enhance the Turn Bidded Marketplace in a manner that prevents individual identification of Company information; and (iii) if required by court order, law or governmental agency.
5. TRIAL FEATURES. Some Program features will be made available on an as-is basis only ("Trial Features"), which will be marked as such. Company's use of the Trial Features is at its own risk. All information relating to the Trial Features is confidential.
6. PAYMENT. Calculation of the fees Company owes Turn under this Agreement ("Fees") is dependent on how Company bids for Ads via the Turn Bidded Marketplace when Company creates Ads and Ad LineItems, as well as the revenue recognition methodology set forth by the Company in the Ad LineItem (e.g., CPM basis, CPA basis, CPC basis, etc.). Company will pay Turn in accordance with the payment method it selects when it creates Ads and Ad LineItems, and subject to reports submitted by Turn, which shall be the system of record. If Turn is sending Company invoices, Company will remit payment within thirty (30) days of the date of Turn's invoice, or other terms as approved by Turn's finance department, and said payment terms shall be subject to periodic review by Turn if the credit worthiness of Customer changes. If Turn is not sending Company invoices, Turn will either charge Company's credit card on file with Turn, or deduct the Fees from a Turn payment account that Company has established with a Turn third-party payment processor. Turn may elect to accumulate multiple charges and invoice or charge Company when Company's unpaid Fees total a threshold amount. If Company decides to cap its expenditure for an Ad LineItem, Turn will use commercially reasonable efforts to end such lineItem when the cap has been reached; however, any Fees that exceed the cap are Company's sole responsibility. Fees will exclude all applicable taxes. Fees are based only on Turn's measurements of Actions, and Turn does not reconcile Action data with third-party advertisement servers. If Turn becomes aware of fraudulent Actions, relating to an Ad LineItem, it may reverse certain amounts charged to Company. For the purposes of checking credit, effecting payment and/or servicing Company's account, Turn may share with companies who work on its behalf, such as payment processors and/or credit agencies, any credit-card and related payment information that Company provides.
7. CONFIDENTIAL INFORMATION. During the term of this Agreement, each party may receive Confidential Information from the other. Except as expressly authorized by this Agreement or necessary for performance under this Agreement, each party will use reasonable efforts to maintain the confidentiality of all such information, and no party will use less effort than it ordinarily uses with respect to its own Confidential Information. The foregoing will not restrict either party from disclosing Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to its legal or financial advisors, or prospective acquirors or investors. Turn's Confidential Information means: (i) any Turn business or technical information; (ii) the Program and Trial Features and all related software, technology, guidelines, and documentation; (iii) lineItem metrics (e.g. click-through rates, conversion rates, and targeting criteria), amounts paid or payable, and other statistics relating to the Program; and (iv) Turn's methods for selecting and directing Ads to Publisher Websites. Company's Confidential Information means any confidential business or technical information Company provides to Turn. Confidential Information excludes information that: (w) is or becomes generally known to the public through no fault of the recipient; (x) is rightfully known by the recipient at the time of disclosure without a confidentiality obligation; (y) is independently developed by the recipient without use of the disclosing party's Confidential Information; or (z) the recipient rightfully obtains from a third party without disclosure restrictions.
8. TERM AND TERMINATION. Either party may immediately terminate this Agreement, or cancel the Program, for any reason at any time by providing twenty four (24) hours to the other party notice through the Program system. Company may terminate this Agreement by disabling its account and may terminate any Ad LineItem at any time by following instructions set forth in the Program. Turn may terminate this Agreement upon giving notice to Company directly in writing, or by informing Company of such via the Program. Upon termination, Company will pay all amounts due to Turn within thirty (30) days from the last day of the month in which termination occurs, or pursuant to the payment terms in place between the Company and Turn at the time of termination. Upon termination or expiration of this Agreement, any terms that should by their nature survive will survive, including the indemnification and confidentiality provisions.
11. NO GUARANTEE; WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY STATED AT SECTION 9, TURN'S SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND PROVISION AND/OR USE OF TURN'S SERVICES ARE AT CUSTOMER'S SOLE RISK. Turn makes no guarantee that participation in the Program will secure any success or generate any leads from Company's Ads, or that Company's Ads will be served on Publisher Websites. EXCEPT AS SET FORTH IN THIS AGREEMENT, TURN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TURN DOES NOT WARRANT: (I) THAT THE PROGRAM WILL MEET COMPANY'S REQUIREMENTS; (II) THAT THE PROGRAM AND/OR THE PUBLISHER WEBSITE WILL BE ERROR FREE OR UNINTERRUPTED OR (III) THAT ANY ERRORS WILL BE CORRECTED.
12. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING UNDER COMPANY'S BREACH OF SECTIONS 6 AND 8 AND UNDER SECTION 9, EACH PARTY'S CUMULATIVE LIABILITY TO THE OTHER UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID OR OWING TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. NEITHER COMPANY NOR TURN WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION) ARISING IN CONNECTION WITH THIS AGREEMENT OR COMPANY'S PARTICIPATION IN THE PROGRAM. IN ADDITION, TURN WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM COMPANY'S PARTICIPATION IN THE PROGRAM, TERMINATION OF ITS PARTICIPATION IN THE PROGRAM, OR ANY CESSATION OF PROGRAM FUNCTIONS.
13. GENERAL. This Agreement will be governed by California law except for its conflict of laws principles and will be adjudicated in the federal or state courts located in the Northern District of California. The parties hereby consent to personal jurisdiction and venue there. If any portion of this Agreement is found to be unenforceable, the remaining provisions of this Agreement will remain in full force. Company may not assign this Agreement without Turn's prior written consent. This Agreement may be freely assigned by Turn without the consent of Company. Any attempt to assign this Agreement other than as permitted above will be invalid. All communications made by Company to Turn relating to the Program will be made directly to Turn. This Agreement is intended for the sole benefit of the parties and is not intended to benefit any third party. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding this subject matter. It supersedes all prior or subsequent agreements or understandings relating to their subject matter. In particular, without limitation, given the unique nature of Turn's business model, this Agreement shall supersede any contractual terms sent by Company in its Insertion Orders and/or any standard terms and conditions employed by Company in its standard business practices. If there is any discrepancy between this Agreement, on one hand, and any insertion order or standard terms and conditions by Company, on the other hand, then the terms of this Agreement shall apply.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the latter date written below.
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