Master Advertiser Terms and Conditions
Last Updated May 31, 2023
These Master Advertiser Agreement Terms and Conditions (“Terms and Conditions”) apply to any IO related to the Services (as such capitalized terms are defined herein below) that references to these Terms and Conditions.
To the extent that there is any conflict or inconsistency between these Terms and Conditions and any IO, the terms of such IO shall govern unless otherwise expressly stated to the contrary in these Terms and Conditions.
- Advertiser Agreement Insertion Order. For purposes hereof, “IO” shall mean the order form, subscription form, statement of work or other written document that evidences the purchase by a contracting party (“Advertiser”) of Services from PandoLogic, Inc. (“Company”) identified on each such IO. Each IO is governed by and incorporates these Terms and Conditions, and all such IOs and these Terms and Conditions are collectively referred to herein as the “Agreement.” These Terms and Conditions set forth the parties’ respective rights and obligations concerning Company’s generation of online click traffic (collectively, “Clicks”) for Advertiser.
- Services. In connection with generating online click traffic (collectively “Clicks”) hereunder, and depending on which method is authorized in the IO, Company may: (a) send Jobs (as defined below) via e-mail (“Company E-mail”), to individuals in Company’s proprietary database(s) (collectively, “Company Database”); (b) syndicate jobs to third parties (“Company Syndication”) and (c) feature certain Jobs on websites owned and/or operated by Company (collectively, “Company Websites,” together with the Company E-mail, Company Syndication, and Company Database, the “Company Media”). For purposes of the Agreement, the activities engaged in by Company in (a) through (c) of this Section 2 shall be referred to as the “Services.”
- Marketing Restrictions. Company will not use inappropriate content on, or in connection with, the Jobs and/or Company Media including, without limitation, content that promotes or contains language referring to: (i) the use of alcohol, tobacco or illegal substances, nudity, pornography, or profanity; (ii) illegal activity, deceptive acts, or material that promotes violence; (iii) libelous, defamatory, false or misleading content; (vii) content that violates the rights of others, such as intellectual property or privacy rights;.
- Jobs. Advertiser shall provide Company with open positions of employment, employers seeking work candidates, or jobs through an XML feed (“Jobs”).
- Payment for Valid Clicks. Advertiser shall pay Company the “Cost Per Click” set forth in the feed for each Valid Click (as defined below) purchased by Company hereunder. Unless expressly set forth to the contrary in the IO, Advertiser shall make payment for Valid Clicks within thirty (30) days of receiving an invoice. For purposes of the Agreement, a “Valid Click” shall mean a Click that is not an Invalid Click or Fraudulent Click (as those terms are defined below). For purposes of the Agreement, an “Invalid Click” means a Click submitted by Company to Advertiser that is a duplicate (a click occurring from the same IP Address in less than 30 minutes), expired (a click that occurs 24 hours after the job(s) have been removed from the feed), or generated in connection with a violation of Applicable Law (as defined below) and/or any of the terms or conditions of the Agreement including where the subject Click has been generated by SMS text messaging Services in violation of the TCPA or by email marketing Services in violation of the CAN-SPAM Act of 2003, as amended (“CAN-SPAM”) and/or Canada’s Anti-Spam Legislation (“CASL”). For purposes of the Agreement, a “Fraudulent Click” means a Click generated by Company that is the product of incentivized marketing, fraud or manipulation on the part of Company. Advertiser shall provide Company with a valid tax-ID. Advertiser agrees to pay all sales, use, excise and other taxes which may be levied upon either party in connection with the Agreement, except for income taxes on Company’s income. The total number of Clicks generated by Company shall be determined based on Company’s tracking and reporting, which determination shall be final and binding upon the parties. Company agrees that it shall not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by Advertiser.
- Term. The term of an IO is the period of time that begins on the IO Start Date and, unless terminated sooner as provided herein, will continue until the IO End Date, both dates as specified on the IO (the “Term”). The term of these Terms and Conditions and the Agreement shall continue as long as an IO referencing or incorporated into these Terms and Conditions remains valid and in effect. Termination or expiration of any IO shall leave other IOs unaffected. Either party may terminate the Agreement at any time during the Term, with or without cause, upon five (5) business days’ prior written notice to the other party. Either party may terminate the Agreement immediately upon written notice if the other party materially breaches any provision of the Agreement which remains uncured for a period of fifteen (15) days from the date of written notice of such breach.
- Representations and Warranties. Each party represents and warrants to the other party that: (a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder; (b) the execution of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms.
- Indemnification. Company agrees to indemnify, defend and hold harmless Advertiser, its subsidiaries, agents, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any third party claim related to the Services. Advertiser agrees to indemnify, defend and hold harmless Company its subsidiaries, agents, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any third party claim due to Advertiser’s breach of the Agreement.
- Confidentiality. During the Term, and until such time as the “Confidential Information” (as defined below) is no longer protectable under Applicable Law, neither party will use or disclose any “Confidential Information” of the other party except as specifically contemplated herein. “Confidential Information” shall mean all information, materials or concepts confidential or proprietary to a party (the “disclosing party”) relating to its business, products or customers which is received or learned by the other party (the “receiving party”) or any of receiving party’s employees, officers, directors, representatives or agents (collectively, “Representatives”) through or as a result of the receiving party’s relationship with the disclosing party or access to the disclosing party’s premises or personnel. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this Section 8 by the receiving party; (iii) is lawfully received by the receiving party on a nonconfidential basis from a third party without breach by such third party of any legal, contractual, or fiduciary obligation to the disclosing party; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party’s Confidential Information to the disclosing party.
- Non-Circumvention. Advertiser recognizes that Company has relationships with its publishers which Advertiser agrees not to circumvent.
- Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY. THE PARTIES ACKNOWLEDGE THAT THE MUTUAL PROMISES CONTAINED HEREIN REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY. COMPANY’S LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO OR IN ANY WAY CONNECTED WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED TWELVE (12) MONTHS OF THE FEES PAID TO COMPANY BY ADVERTISER DURING THE TERM.
- Waiver. No delay or failure by either party to exercise any right under the Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided for herein. A waiver of default shall not be a waiver of any other or subsequent default.
- Governing Law/Venue. The Agreement shall be construed in accordance with and governed by the laws of the State of California. In the event that any suit, action or other legal proceeding shall be instituted against either party in connection with the Agreement, each hereby submits to the jurisdiction of either the United States District Court for the Southern District of California or any California State Court of competent jurisdiction, located in Orange County, and further agrees to comply with all the requirements necessary to give such court jurisdiction.
- Entire Agreement. The Agreement, which includes these Terms and Conditions together with any applicable IOs, contains the entire agreement between the parties. No modification of the Agreement shall be effective unless in writing and executed by an authorized officer or representative of both parties.
- Severability. If any provision contained in the Agreement 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 real intention of the parties, and the remaining provisions of the Agreement will remain in full force and effect.
- Relationship of the Parties. The relationship between Advertiser and Company established by the Agreement is solely that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representation, warranty or covenant, or assume or create any obligation, on the other party’s behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives. Both parties acknowledge that Company’s employees are not nor shall they be deemed to be employees or independent contractors of Advertiser.
- Assignment. Neither party shall, without the prior written consent of the other party, assign its rights or delegate its duties under the Agreement, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either party may, in the event of a merger, acquisition or sale of substantially all of such party’s assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other party. The provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
- Force Majeure. Each party shall be excused from the performance of its obligations under the Agreement and any delay or failure in performance by such party shall not be grounds for termination of the Agreement for cause or give rise to any liability for damages, to the extent that such party is prevented from performing due to a cause that is beyond its reasonable control including, but not limited to, an act of God, act or omission of the other party, act of any government or regulatory body, fire, explosion, flood, earthquake or other natural or man-made disaster, epidemic, pandemic, sabotage, war, riot, civil disturbance, strike, labor dispute, loss of electrical or other power or telecommunications equipment (each a “Force Majeure Event”). Each party agrees to use commercially reasonable and diligent and determined efforts to minimize the length and effects of delays that occur due to the occurrence of a Force Majeure Event. Each party agrees to provide prompt notice to the other party to the extent such party is relying or expects to rely on the provisions of this subsection to excuse its delay or failure to perform.