adFUZE Advertising and Sponsorship Terms & Conditions
FUZE Technology Inc. (“adFUZE ") and the person, firm or entity, including, but not limited to, advertisers ("Advertiser"), their buying agencies ("Agency") and organizations known as advertising or buying services ("Service"), applying for credit to purchase such advertising and seeking to purchase advertising space (collectively called "Buyer") hereby agree that the following terms and conditions shall govern issuance of credit and purchase of advertising space by and in adFUZE’s network.
1. Relationship of the Parties.
Advertising agency (“Agency”), if applicable, or advertiser named in the Contract for Advertising to which these Terms and Conditions are part is acting as “Advertiser”. The identity of the “Company” (or “us,” “our,” or “we) depends on the kind of advertising purchased. If the Advertiser is purchasing i) advertising on the adFUZE network, chargeFUZE network and ii) any other advertising, FUZE Technology is the Company.
2. Billing and Payment
A. adFUZE will bill Buyer 50% down, and 50% prior to campaign launch, unless otherwise provided on the advertising invoice. Prepayment is required for all new clients.
B. Payment terms will be based on the invoice. If payment is not received within the specified time, adFUZE also reserves the right to:
a) cancel existing orders;
b) refuse new orders;
c) notify Advertiser of account status if purchased by Agency or Service;
d) assess interest charges of 2% per month to the account;
e) pursue any rights and remedies it may have under applicable laws.
C. When any part of an account for advertising becomes delinquent, then the entire amount owed shall become due and payable and adFUZE may refuse to publish further advertising. In this event, the Buyer shall pay for advertising space actually used or impressions delivered according to the rate earned at the time of the delinquency.
D. Notwithstanding to whom bills are rendered, Advertiser, Agency and Service, jointly and severally, shall remain obligated to pay to adFUZE the amount of any bills rendered by adFUZE within the time specified and until payment in full is received by adFUZE. Payment by Advertiser to Agency or to Service, or payment by Agency to Service, shall not constitute payment to adFUZE. In the event that ads are placed by a third party in "care of" an Agency or Advertiser, the Agency and Advertiser assume full responsibility jointly and severally for all actions of such third party and for payment of print or online advertising placed by that third party.
E. Extension of credit to Agencies is based on the Agency's acceptance of liability for all advertising placed by them and billed to their account. No endorsement, statement or disclaimer on any insertion order, check or letter shall act as an accord or satisfaction, or as a waiver of this condition unless and until it is accepted by adFUZE by a separate written agreement signed by a duly authorized representative of adFUZE. In the event of nonpayment of any Agency account, prior to referring to said account for third party collections, adFUZE reserves the right to contact the Agency's client(s), as disclosed principal(s), for payment. If the outstanding balance is still not satisfied, adFUZE may proceed with collections against both the Agency and the Advertisers. No such action on the part of adFUZE shall relieve the Agency of liability for the debt
F. adFUZE reserves the right to withhold further advertising pending receipt of replacement funds.
G. In the event an account is referred to a third party for collection, Buyer agrees to pay collection and/or attorney fees, as well as court costs incurred to effect collection.
H. Terms, conditions, rates or agreements are set forth in the insertion agreement or proposals signed by the Advertiser prior to publication on the station's Digital Signage. Sales representatives and account executives are not authorized to modify these terms and conditions after it has been signed by the Advertiser
3. Cancellation
A. If a contracted advertisement is canceled less than 60 days before the scheduled publication or insertion date, deposit may not be refunded, unless otherwise specified in invoice.
4. Rates
Rates are reflected in the Proposal/Invoice order form sent to client.
5. Deliverables
A. All production costs for anything other than an image or video file meeting adFUZE’s technical specifications will be billed at cost to the Buyer.
B. adFUZE will not be responsible for errors or creative mistakes appearing in advertisements
C. adFUZE shall be under no liability whatsoever by reason of error for which it may be responsible in any advertisement beyond liability to give the Buyer credit for as much of the space occupied by the advertisement as is materially affected by the error; and its obligation to give such credit shall not apply to more than one incorrect insertion under any contract or order unless it is notified of the inaccuracy prior to the deadline for repetition of the insertion. Credit for errors caused by adFUZE may be requested in the form of "makegood" ads. Makegood insertions must appear within 48 hours of the error or the next available issue of publication.
D. The Buyer assumes liability for all content (including text representation and illustrations) of advertisements published and also assumes responsibility for any claims arising therefrom made against adFUZE, including costs associated with defending against such a claim.
E. All advertising copy that might be mistaken by a reader as news, feature or other non-advertising materials must be clearly marked "advertisement". In the event such a copy is not clearly marked, the "advertisement" notation will be added by adFUZE. Political candidate advertisements must reflect the identity of the paying sponsor.
F. Absent the specific written commitment by adFUZE, all positions are at the option of adFUZE, and no adjustments, reinstatements or refunds be made because of the position and/or section in which an advertisement has been published. Misclassification of classified ads is not permitted.
6. Content; Advertisements; Approvals.
a. As applicable, Advertiser will furnish, advertising creative or physical advertisements which must be created and produced in accordance with our exact specifications, at Advertiser’s sole expense. As applicable, Advertiser must deliver: *
i. advertising creative to us:
1) fourteen (14) days before a campaign date
ii. a sufficient supply of physical advertisements to us fourteen (14) days before an installation date if the Advertiser is producing the advertisements, unless otherwise agreed upon by the parties, or loss of service may occur.+
If advertising creative or physical advertisements are not timely received, Company may leave such space vacant, post an alternative ad in the space and Advertiser agrees to pay for such space, or use commercially reasonable efforts to fulfill the Contract but may reasonably modify a campaign’s posting window or campaign run.
b. All advertising creative must be in compliance with the advertising standards set by the applicable location owner (“Location Owner”), transit authority (“Transit Authority”), or municipal authority (“Municipal Authority”), together with Location Owner and Transit Authority, an “Owner”). At a minimum, nudity, pornographic, profane or obscene creative is prohibited. All creative components of an advertisement are subject to our approval and each Owner’s approval, and their decision as to acceptability shall be final and without any liability whatsoever. In the event such advertising creative is rejected, Advertiser must provide an acceptable replacement within five (5) days. Advertiser agrees that any third-party advertising, tickers, links or bots embedded in the digital ad are also be subject to the regulations and indemnity provisions set forth in this Section and Section 6.
c. In the event an Owner disapproves of an advertisement, adverse publicity results from the presence of such advertisement, or we have a good faith reason to expect either, we may remove the advertisement and Advertiser’s only remedy is the receipt of a pro rata credit for any prepaid and unearned amounts from the date of removal. We and Advertiser accept this Contract subject to all federal, state and municipal laws and regulations with respect to the advertising matter to be displayed. In the event such advertising becomes illegal or a request is received to terminate the advertising, we reserve the right to terminate the Contract in whole or in part.
d. Unless otherwise specified, there may be additional charges if Advertiser makes campaign changes after advertisements are already displayed.
7. Delays; Shortages.
a. Losses arising from Advertiser’s failure to timely furnish advertising as required on the face of the Contract shall be borne by Advertiser.
b. We intend to deliver 100% of the advertising inventory set forth on the Contract for Advertising. However,
i. Digital Advertisements. Advertiser has no right to terminate the Contract if for at least 95% of the display amount specified on the Contract (the “Guaranteed Display Amount”), we either i) display the advertisement or ii) deliver the Impressions. We will monitor such digital advertising delivery and will notify Advertiser as soon as practicable (and no later than fourteen (14) days before the end of the campaign unless the length of the campaign is less than 14 days), if we believe that an under-delivery of the Guaranteed Display Amount is likely. In the event that we sell a digital domination, an Advertiser’s advertisement may be preempted. In the case of an under-delivery of the Guaranteed Display Amount or a preemption, Advertiser is entitled to a Makegood.
c. A “Makegood” as set forth herein shall be i) alternative display placements of approximately equal value or ii) an extension of the term of the campaign equivalent to the delay or omission. The type of Makegood is upon mutual agreement of the parties and subject to availability. In addition to the foregoing, we shall have the right at any time to preempt the display of digital advertising for public service messages in connection with an Amber Alert, or at the request of any Federal, State or local authority, any public emergency (an “Emergency Interruption”). In such event, we shall not be in breach of this Contract. The Advertiser hereby expressly waives any remedies at law or equity to which the Advertiser might otherwise be entitled as a result of such Emergency Interruption.
8. Breach.
A. adFUZE reserves the right to cancel an advertising contract upon default by Buyer in the payment of bills or other material breach of the terms hereof at any time upon prior written notice. Upon such cancellation, all charges for ads printed or run online and not paid shall become immediately due and payable. If adFUZE cancels by reason of Buyer's material breach,
Buyer's only liability shall be to pay for ads completed hereunder prior to cancellation by adFUZE.
B. In the event of a material breach by adFUZE in publishing the Buyer's advertising, Buyer reserves the right to cancel the advertising contract at any time upon prior written notice.
9. Failure to publish.
If, due to public emergency or necessity, force majeure events, restrictions imposed by law, acts of God, labor disputes or for any other cause, including mechanical or electronic breakdowns, beyond adFUZE's control, an omission of any advertisement contracted to be printed or carried hereunder, adFUZE will provide, as the sole remedy to Advertiser, Agency and Buyer, “make good” impressions through comparable placements, to be delivered no later than 60 days following the scheduled campaign stop date.
10. Advertising Materials Restrictions
A. All advertising material shall be furnished by Buyer. All expenses connected with the creation and delivery of advertising material to adFUZE shall be paid by Buyer.
B. Buyer shall submit advertising material along with written instructions for its use to adFUZE as soon as possible to ensure proper publication on the network. Changes to instructions should be in writing to adFUZE by email prior to changes being made.
C. adFUZE will not be responsible for losses incurred from errors in advertisements. adFUZE is responsible only for the cost of space required to correct an error. It is agreed that no other liability will be acknowledged between the advertiser and the publisher by reason of this contract.
D. adFUZE in its sole discretion, reserves the right to reject any ad copy or advertisement that is aimed at underage viewers that can be a violation of Children's Online Privacy Protection Act (COPPA)
E. adFUZE, in its sole discretion, reserves the right to reject any ad copy. We do not accept advertisements that are gratuitously offensive, adult, depict or advocate violence, or are considered to be in poor taste. We do not accept advertisements that discriminate on the basis of race, religion, gender, national origin, disability, or sexual orientation. All ad creative must include the advertiser name or logo. We reserve the right to cancel any advertisement at any time. Rates and specifications are subject to change. adFUZE can at its discretion refuse any advertisement due to content not allowed by the venue host.
F. Advertisements in an election for/against a political party or candidate must disclose the identity of the paying sponsor with the message “Paid for by XYZ.” Advertisements of an advocacy or political nature that are attacks of a personal nature will not be accepted. We reserve the right to require sourcing on factual claims made in advocacy or political advertisements.
G. Buyers are responsible for checking the accuracy of the proofs they request. The Buyer should carefully check the entire ad proof, including areas in which changes or corrections were not requested.
11. Privacy and Data Protection.
A. All capitalized terms used but not defined in this Section 8 have the meaning ascribed to them in General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”). For purposes of this Section 8, each party is a Data Controller of the Personal Data that it collects, employs or otherwise Processes to deliver its services, absent a further amendment that sets forth circumstances in which either party is a Data Processor.
B. Publisher, on the one hand and Advertiser, Agency and Buyer, on the other hand, each Process Personal Data, including exchanging Personal Data with the other party, for purposes of providing advertisements on publisher’s Newspaper and/or Website (collectively, the “Purposes”). Either party may Process the Personal Data that it obtains from the other party for its own purposes, including to provide services for the benefit of other platforms and clients.
C. As Data Controllers, each party shall:
a. comply with all laws, regulations and other legal requirements of any jurisdiction relating to privacy, data security, communications secrecy, Personal Data Breach notification, or the Processing of Personal Data, such as, to the extent applicable, GDPR (“Data Protection Laws”), and promptly notify the other party in writing if it is no longer able to meet its obligations under Data Protection Laws with respect to the subject of this Agreement;
b. shall Process and Transfer Personal Data only for the purposes described in this advertising purchase agreement, or as otherwise agreed in writing by the parties;
c. independently fulfill all duties required of Data Controllers under Data Protection Laws, including, without limitation (as applicable), with regard to complying with applicable principles of Personal Data Processing (such as data minimization); determining and qualifying for any necessary legal basis or bases for collection or processing of Personal Data (such as consent, if applicable); managing and reporting Security Incidents; Transfers (including, without limitation, entering into Standard Contractual Clauses or certifying under the Privacy Shield Framework); contracting with only those Data Processors that provide adequate protections for Personal Data; implementing required and appropriate contractual language in agreements with Data Processors and other Data Controllers; maintaining records of data processing; conducting any required data protection impact assessments; and implementing and maintaining all measures required pursuant to Article 32 of the GDPR, where “Privacy Shield” means the EU-U.S. Privacy Shield Framework and the Swiss-U.S. Privacy Shield Framework as set forth by the U.S. Department of Commerce and “Standard Contractual Clauses” means either the standard contractual clauses for the transfer of personal data to third countries (Commission Decision 2004/915/EC) or the standard contractual clauses for the transfer of personal data to processors established in third countries (Commission Decision 2010/87/EC), both available at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/modelcontracts-transfer-personal-data-third-countries_en;
d. have an independent obligation to respond to any requests received by such party from Data Subjects regarding Personal Data, including without limitation, those set forth in Chapter III of the GDPR, and, if applicable, and to the extent legally permitted, the parties shall provide each other with reasonable cooperation and assistance in relation to handling of a Data Subject’s request; and
e. inform the other (to the extent legally permitted) about any dispute or claim brought by a Data Subject or a Supervisory Authority concerning the Processing of the Personal Data under this advertising purchasing agreement, and if applicable, and to the extent legally permitted, the parties shall provide each other with reasonable cooperation and assistance in relation to handling of a dispute or claim brought by a Data Subject or a Supervisory Authority; provided that and the party that was the recipient of the dispute or claim shall be responsible for interacting with the relevant Data Subject or Supervisory Authority.
D. Neither party shall have responsibility for Processing special categories of personal data, as referenced in Article 9 of the GDPR. Neither party shall provide the other with any special categories of personal data.
E. Each party shall post a privacy notice on its website that complies with Data Protection Laws, reflects the nature of the relationship and Transfer of data between the parties, and identifies a contact point for Data Subjects. Each party shall ensure that its privacy notice informs Data Subjects that (i) their Personal Data will be shared with other third parties such as publisher or Advertiser, as applicable; (ii) their Personal Data will be received from third parties, such as publisher or Advertiser, as applicable; and (iii) their Personal Data will be Processed for advertising purposes, including targeted advertising, if applicable.
F. As Advertiser does not have a direct relationship with any Data Subject using publisher’s website(s) or application(s), where consent is required by Data Protection Laws, publisher shall use commercially reasonable efforts to seek to obtain legally sufficient consent to publishers and Advertisers Processing of Personal Data for the Purposes. To the extent that any such consent is withheld or rescinded by a Data Subject, neither party shall Process such Data Subject’s Personal Data for the Purposes.
12. Indemnification.
Buyer agrees to hold and save adFUZE harmless against all liability resulting from the publication of advertising material furnished by Buyer.
1. Our Marketing. Advertiser grants Company and Owner permission to use photographs or renderings of its advertisements in their marketing materials, websites and in furtherance of services rendered.
2. Miscellaneous.
a. Unless otherwise agreed, acceptance of this Contract is subject to credit check and our approval. We, in our sole discretion, may extend or reject credit at any time during the term hereof. In such event, we may require full payment to be made in advance.
b. This Contract becomes effective when accepted by us and contains the full agreement of the parties, and no prior representation or assurance, verbal or written not contained herein, shall affect or alter the obligation of either party hereto.
c. We are an equal opportunity employer.
3. Governing Law; Venue. In the event of legal action arising out of this Contract, this Contract and all claims arising hereunder are governed by the laws of the State of California and the parties submit to the exclusive jurisdiction of Los Angeles, California.
13. General.
A. adFUZE's obligations hereunder are subject to applicable federal, state and local laws and regulations.
B. adFUZE shall exercise normal precautions in handling of property and mail, but assumes no liability for loss or damage to advertising material and other property furnished by Buyer.
C. Failure of adFUZE or Buyer to enforce any of the provisions herein shall not be construed as a general relinquishment or waiver as to that or any other provision.
D. If credit is approved, adFUZE reserves the right to cancel credit at any time with or without notice for whatever reason.
E. Subject to the "Makegood" provision above, any dispute by Buyer with respect to any publication, advertising material, or services provided by adFUZE or the amount charged for same shall be reported to adFUZE in writing within 30 days from the date of the invoice relating to same, time being of the essence. Any such dispute shall not affect Buyer's obligation to make payment within terms stated above. Failure to report any dispute within such time shall constitute a waiver of any claim by the applicant with respect to such dispute.
F. This application for credit and purchase agreement is a written authorization for adFUZE to conduct a credit inquiry on the persons and entities indicated above. adFUZE is further authorized to answer questions about its credit experience with such persons and entities to others. adFUZE is also authorized to recheck the applicant's credit and/or obtain new credit references from the applicant at its discretion, as long as the applicant advertises with adFUZE.
G. The person executing the credit application and advertising contracts certifies that he/she is authorized to provide this information and to sign the application and contracts, and that the above statements are true and that no unfavorable information known to them has been omitted.
H. The person executing the application and contracts on behalf of applicant acknowledges that he/she has the authority to do so, and by its execution it has caused applicant and third parties to be jointly and severally bound by the terms hereof.
I. The application for credit, advertising contract and these terms and conditions contain the entire agreement between the parties relating to the subject matter herein contained and no change in the terms and provisions shall be effective unless made in writing.
J. The credit application and advertising contract shall be construed under the laws of California, without reference to the choice of law there.