1. Incorporation; Entire Agreement
These Terms and Conditions ("Terms and Conditions"), together with the accompanying Insertion Order ("IO"), constitute the entire agreement (the "Agreement") between Advertiser and Uboard ("Uboard") with respect to the subject matter hereof, and supersede all prior or contemporaneous proposals, agreements, or communications, whether written or oral. These Terms and Conditions prevail over any of Advertiser's general terms and conditions regardless of whether or when Advertiser has submitted its request for a proposal, order, or such terms. Provision of services to Advertiser does not constitute acceptance of any of Advertiser's terms and conditions and does not serve to modify or amend these Terms and Conditions. Any modification of these Terms and Conditions applies only to the IO into which these Terms and Conditions are incorporated. If the IO is entered into by Advertiser’s agency, then references to “Advertiser” herein are also references to Advertiser’s agency.
2. Advertisement Publication
(a) Advertiser Materials:
Advertiser shall provide to Uboard the advertising content ("Advertisement(s)") and all other necessary materials (including the Advertisements, collectively the "Advertiser Materials") in accordance with Uboard’s editorial, graphic, technical, or production criteria (the "Specifications"). Uboard shall have no liability with respect to the Advertiser Materials or for delays or failures attributable to Advertiser’s failure to perform such obligations. Uboard shall provide a final copy of an Advertisement and obtain prior written consent from Advertiser before publication ("Publication") of the Advertisements.
(b) Approval: All Advertisements are subject to Uboard’s approval. Subject to the Terms and Conditions of this Agreement, Uboard may reject or cancel for any reason at any time any Advertisement without liability, even if previously acknowledged or accepted. Uboard has no obligation to make any modifications to an Advertisement after the parties have finalized an Advertisement to be displayed on inventory, including Uboard’s digital display tops (the "Display Tops").
(c) Under-delivery: Uboard will monitor the delivery of the Advertisements and will notify Advertiser either electronically or in writing as soon as possible if Uboard believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Advertiser and Uboard revise the IO in good faith based on any actual or anticipated under-delivery. In the event of an under-delivery of the Guaranteed Display Amount or a preemption, Advertiser is entitled to a make-good.
(d) Over-delivery: Uboard may provide additional ad units unless otherwise indicated on the IO. Advertiser will not be charged by Uboard for any additional impressions or other services above any level guaranteed on the IO.
(e) Proof of Performance: Uboard will provide Advertiser with a performance report ("Performance Report") within a reasonable time of delivery of all Advertisements. Advertiser shall not identify or reidentify any individuals that appear in the Images, and Advertiser shall not share any Images with any third parties unless Advertiser obtains Uboard’s prior written permission in each instance.
(f) Services: Uboard’s services may be performed by Uboard’s affiliates and/or third-party contractors.
3. Cancellation and Termination
Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, with 60 days’ prior written notice to Uboard.
4. Rights
(a) License: Advertiser hereby grants to Uboard a non-exclusive right and license to display, transmit, and distribute the Advertisements and Advertiser Materials on the Display Tops in connection with the Advertising Publication. Advertiser grants Uboard the right to use Advertiser’s name and/or logo in marketing materials to identify Advertiser as an advertiser with Uboard.
(b) Ad Metrics: Uboard hereby grants to Advertiser a non-exclusive, non-sublicensable, non-transferable, royalty-free, revocable right and license to use and access all data related to the performance of the Publication of Advertisements, including any reports, case studies, results, or information created, compiled, analyzed, or derived from such data (the "Ad Metrics"), solely for Advertiser’s internal purposes.
(c) Ownership: Advertiser retains all intellectual property rights in and to the Advertiser Materials. All intellectual property rights in or to the Display Tops, the software and technology related thereto, and other content contained therein are and will remain the exclusive property of Uboard or its licensors.
5. Payment Terms and Conditions
(a) Invoicing: The initial invoice will be sent by Uboard upon completion of the first month’s delivery, or within thirty (30) days of completion of the IO, whichever is earlier. Invoices will be sent to Client's billing address as set forth on the IO.
(b) Taxes: Advertiser shall be solely responsible for any and all taxes that may become due in connection with this Agreement.
(c) Payment Obligations: Advertiser, including its agency, are jointly and severally obligated to pay all amounts due by the invoice date.
(d) Late Payments: Uboard may assess interest on the principle amount of any overdue balance. Advertiser shall be responsible for all reasonable expenses (including attorneys’ fees) incurred by Uboard in the collection of any such overdue payments.
6. Confidentiality
(a) Definition: "Confidential Information" means all confidential and proprietary information of a party disclosed to the other party that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
(b) Use and Disclosure: The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written consent.
(c) Compelled Disclosure: If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure and reasonable assistance, at the Disclosing Party’s request and cost, if the Disclosing Party wishes to contest the disclosure.
(d) Remedies: If the Receiving Party breaches the confidentiality obligations, the Disclosing Party shall have the right to seek injunctive relief to enjoin such acts.
7. Disclaimer of WarrantiesExcept as expressly set forth herein, Uboard provides all ad placements "as is" and hereby expressly disclaims all warranties of any kind, whether express, implied, or statutory.
8. Indemnification
(a) By Advertiser: Advertiser shall indemnify, defend, and hold harmless Uboard from and against any claims arising out of (i) any Advertisements or Advertiser Materials, (ii) Advertiser’s breach of this Agreement, (iii) Advertiser’s provision of services or products resulting directly or indirectly from the Publication of an Advertisement, (iv) Advertiser’s failure to comply with applicable laws, or (v) Advertiser’s negligence or intentional misconduct.
(b) By Uboard: Uboard shall indemnify, defend, and hold harmless Advertiser from and against any claims arising out of (i) Uboard’s failure to comply with applicable law, or (ii) Uboard’s negligence or intentional misconduct.
9. Limitation of LiabilityNeither party shall be liable to the other party for any indirect, incidental, consequential, special, or exemplary damages arising from this Agreement.
10. Feedback
Advertiser is under no obligation to provide any Feedback. Advertiser hereby assigns to Uboard all right, title, and interest in and to any Feedback provided to Uboard.
11. Miscellaneous
(a) No Agency: The relationship between the parties is that of independent contractors.
(b) Governing Law: This Agreement and all disputes arising out of or related to this Agreement shall be governed by the laws of [insert appropriate jurisdiction], without regard to its conflict of law provisions.
(c) Notices: All notices in connection with this Agreement must be in writing.
(d) Assignment: Advertiser may not assign its rights or obligations under this Agreement without the prior written consent of Uboard.
(e) Third Party Beneficiaries: This Agreement is entered into solely between, and made for the sole benefit of, Uboard and Advertiser.
(f) Force Majeure: Neither party shall be considered in breach of this Agreement due to causes beyond its reasonable control.
(g) Headings: The section headings contained in this Agreement are for convenience only.
(h) Amendments; Waiver: No amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.
(i) Severability: If any provision of this Agreement is held to be invalid, illegal, or unenforceable, that provision will be limited or eliminated to the minimum extent necessary.
(j) Counterparts: This Agreement may be executed in separate counterparts, each of which will be an original, but all of which will together constitute one instrument.
By signing below, the parties acknowledge that they have read, understood, and agree to be bound by these Terms and Conditions.
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