ORANGE142 ADVERTISING INSERTION ORDER TERMS AND CONDITIONS

1) Description of Service. Except as otherwise provided in Sections 2, 3 and 4 of these Orange142 Advertising Insertion Order Terms and Conditions (referred to as the “SOW”, “Agreement”, “IO”, or “Terms & Conditions”), Orange142 shall display the advertisement(s) beginning on the Start Date and ending on the sooner of (a) the End Date or (b) the end date that the overall sum of the total cost per click charges, impression levels, or flight duration commitments stipulated in the Orange142 Schedule Detail page of the Insertion Order reach the net amount of advertising purchased.  Orange142 shall use good faith efforts to deliver the desired number of click-throughs or impressions within the time period stated, but shall not be liable at all for failing to do so.

2) Insertion Order Rules. All requests by Client for advertising on Orange142’s, or its Affiliates’ web sites and/or newsletters, are governed by these Terms and Conditions.  For each advertising request, Client shall complete and submit to Orange142 an Insertion Order (“IO”).  Each IO shall be signed by Client and Orange142 and numbered with an individual IO number.  Upon mutual written consent and approval (which may occur via email), the Parties may make changes to the non-financial details of an advertising campaign previously set forth in an executed IO (e.g., changes to the placement description, creative unit, start/end dates and number of ad requests). No other conditions, provisions, or terms of any sort appearing in any writings or other communications made in connection with such IOs, including without limitation those contained on or accompanying checks or other forms of payment, will be binding on Orange142, whether in conflict with or in addition to these Terms and Conditions.  Any IO’s which quote rates which vary from the rates offered by Orange142 will not be binding on Orange142, and will be deemed requests for advertising at Orange142 then-current rates unless signed by both parties. IO’s are binding on Client and not subject to cancellation, except as provided below under Section 6. Client will use Orange142 services in accordance with applicable law and in a manner which does not interfere with, disturb, or disrupt other network users, services, or equipment, as determined by Orange142 in its sole discretion. Each IO shall specify the types and amount of inventory to be delivered (e.g. impressions, clicks, or other desired actions as the “Deliverables”), the price for such Deliverables, the maximum amount of money to be spent pursuant to the IO (if applicable), the start and end date of the campaign, if applicable.

3) Advertisements

Orange142 reserves the right, without liability, to reject, remove and/or cancel any ads which contain content or links which do not meet Orange142’s advertising specifications, at Orange142’s sole discretion. Orange142’s sole liability under this Section shall be to refund the pro-rata portion of amounts paid for the unfulfilled advertising term, if any.  Orange142 may redesign its site at its sole discretion at any time.

  1. a) Client hereby grants Orange142 the right to display its advertisement(s) on both the Orange142 Exchange Web sites, partner web sites, and emails that are related to the Orange142 Media Group. Failure by Orange142 to publish any requested advertisement does not constitute a breach of contract or otherwise entitle Client to any legal remedy.
  2. b) Client’s failure to comply with all applicable requirements of the Advertising Specifications may delay or prevent delivery of the advertisements and shall give Orange142 the right to immediately terminate the applicable IO;
  3. c) Client shall be solely responsible for the content of its advertisements and any web site linked to from such advertisements and shall indemnify Orange142 for all loss, costs, and damages in connection with any claims of infringement of any third party rights. Client represents, warrants and covenants to Orange142 that at all times, (a) it is fully authorized to publish the entire contents and subject matter of all requested advertisements (including, without limitation, all text, graphics, URLs, and Internet sites to which URLs are linked); (b) all such materials and Internet sites comply with all applicable laws and regulations and do not violate the rights (including, but not limited to, intellectual property rights) of any third party; (c) it has the full corporate rights, power and authority to enter into this IO and to perform the acts required of it hereunder, and its execution of this IO does not and will not violate any agreement to which it is a Party or by which it is otherwise bound, or any applicable law, rule or regulation; and (d) each such Internet site is controlled by Client and operated by Client or its independent contractors, is functional and accessible at all times, and is suitable in all respects to be linked to from the applicable site containing the advertisement.
  4. d) It is the Client’s obligation to submit Advertising Material in accordance with Orange142’s then existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Orange142’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and material due dates) (collectively “Policies”).
  5. e) Public Announcements. Client hereby grants Orange142 permission to publicize the fact that it is a client of Orange142 in a press release. However, Client shall not use, display or modify Orange142’s trademarks in any manner without the prior written consent of Orange142.

4) Privacy and Compliance. From the date that an advertisement begins to run, through the expiration or termination of the Agreement or applicable IO, Client shall have a privacy policy in place governing Client’s use of end users’ personal information that meets or exceeds any applicable laws, rules and regulations governing the use of such information.  Both parties shall ensure that any collection, use and disclosure of information obtained pursuant to the related IO comply with all applicable laws, regulations and privacy policies, including all of the requirements the CAN-SPAM Act. Client agrees not to send any unsolicited, commercial email or other online communication (e.g., “spam”) through to Orange142 users and shall comply with all applicable Orange142 policies regarding bulk mail. For the purposes of any email or advertising placements, Client designates Orange142 as the senders for compliance with the CAN-SPAM Act. This section shall survive the completion, expiration, termination or cancellation of this IO for a period of five (5) years.

5)  Payment Terms and Conditions. Client shall be invoiced by Orange142 upon presentation of the IO. Orange142’s terms for media placement is payment in advance or net30 with credit approval. Other terms may be extended based on the Client signing a company GSA after a period of working together. In addition to any other rights, Orange142 reserve’s the right to not place any media until all invoices are paid in full. All sums payable by Client to Orange142 under this Agreement are exclusive of any sales tax, indirect or similar taxes chargeable on any supply to which those sums relate. If other billing terms have been agreed to then the terms and conditions of the GSA will apply to each IO. All billing calculations are based solely on the ad impression or quick count metrics as calculated by Orange142 (including, but not limited to CPM and CPC), not Client or third party calculations, unless otherwise agreed to in writing in the Orange142 IO or Schedule Detail page.

6) Term and Termination. This Agreement is effective upon the signature of both parties of the terms and conditions stated herein by signing the attached IO. This Agreement may be terminated by Client only if a material breach of this Agreement remains uncured after the non-breaching party has given thirty (30) days prior written notice to the breaching party specifying the breach.  However, either Party may cancel any specific IO at any time with at least twenty (20) days’ prior written notice to the other Party. So long as any IO remains in effect, these Terms and Conditions shall also remain in effect.  If any IO is cancelled for any reason, Client shall pay to Orange142, within thirty (30) days after such cancellation, all amounts not yet paid for such delivered ad requests up to the effective date of cancellation. IF EITHER PARTY TERMINATES ANY IO, Client’s SOLE REMEDY WILL BE A REFUND OF ANY PRE-PAID FEES IN EXCESS OF THE FEES OWED TO Orange142 UNDER THE IO.  NEITHER Orange142 NOR ANY OF ITS AFFILIATES WILL HAVE ANY OTHER LIABILITY OF ANY NATURE TO Client.

7)  Liability, Warranty & Indemnity

  1. a) EXCEPT AS OTHERWISE STATED HEREIN, Orange142 MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO OR PAGES DISPLAYED ON THE Orange142 SITE OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE TIMES OF THE Orange142 SITE. Orange142 DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY OTHER LOSS, INJURY, COST OR DAMAGE SUFFERED BY Client OR ANY THIRD PARTY AND SHALL IN NO EVENT BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS. THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT. IN NO EVENT SHALL Orange142 OR ANY OF ITS AFFILIATES BE LIABLE TO Client FOR AN AMOUNT IN EXCESS OF THE TOTAL DOLLAR AMOUNT ACTUALLY RECEIVED BY Orange142 FROM Client FOR THE SPECIFIC AD AT ISSUE
  2. b) Client agrees to defend, indemnify and hold harmless Orange142 and each of Orange142’s agents, Clients, subcontractors and affiliates, and the officers, directors, and employees of any of the foregoing, from, against and in respect of any and all losses, costs, (including reasonable attorney’s fees) expenses, damages, assessments, or judgments (collectively, “Liabilities”), resulting from any claim against any such parties in connection with Client’s advertisement, except to the extent that such claims directly resulted from the gross negligence or willful misconduct of Orange142.

8) General Provisions. These terms and conditions are governed by the laws of the State of Texas, USA.  Client consents to the exclusive jurisdiction and venue of courts of Travis county, TX for all disputes related to the subject matter hereof.  No joint venture, partnership, employment, or agency relationship exists between Client and Orange142. Orange142 will not be deemed to have waived or modified any of these terms and conditions except in writing signed by its duly authorized representative.  Client may not assign its rights hereunder to any third party unless Orange142 expressly consents to such assignment in writing, not to be unreasonably withheld. Modifications to the originally submitted IO will not be binding unless signed by both parties. If any provision of these standard terms and conditions is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be deemed modified to the extent necessary to make them enforceable.  These Terms and Conditions will be deemed to be controlling over all other writings or agreements of any kind between the parties covering the subject matter of the IO, except for alternate (a) payment or (b) cancellation language, as specifically provided in the business terms in the IO or Schedule Detail Page. All notices to Orange142 relating to any legal claims or matters must be made in writing to Orange142, Attn:  Legal Department, 2901 Via Fortuna STE 185, Austin, TX 78746. If Orange142 and Client have entered into a Non-Disclosure Agreement, Orange142 and Client agree that the terms of such agreement will be deemed incorporated herein and further, that all terms and conditions of this Agreement will be deemed Confidential Information as defined therein. If Orange142 and Client have not entered into a Non-Disclosure Agreement, then each Party expressly undertakes to retain in confidence and to require its agents and contractors to retain in confidence all information and know-how transmitted to such Party that the disclosing Party has identified as being proprietary and/or confidential or which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential.  All terms and conditions of this Agreement will be considered confidential and will not be disclosed (except to both Party’s attorneys and accountants on a need-to-know basis) without the prior written consent of the other Party.  The Parties acknowledge and agree that Orange142 may archive an electronic copy of the fully executed Agreement. Except as specifically provided herein, this Insertion Order and Terms & Conditions constitute the entire understanding and Agreement between the parties and supersedes any and all prior understandings and/or Agreements between the parties with respect to the subject matter.  No change, amendment or modification of any provision of this Agreement or waiver of any of its terms will be valid unless set forth in writing and mutually agreed to by the parties.