Standard Terms and Conditions for PPC Insertion Order
The following terms and conditions (the “Standard Terms”) shall govern the insertion order (“IO”) (collectively the “Agreement”) under which Fire Brick Group will provide leads, clicks or specified actions (collectively known as “Leads”) to Client as described in the Campaign Notes through one or more its websites including without limitation its Oak Job Alert site (known as the Fire Brick Group Network) and/or through Fire Brick Group’s relationships with its job seekers.
1.Display of Client Information; Editorial Control. Subject to the provisions of this Agreement, Client hereby grants Fire Brick Group a non-exclusive right and license to display its brand, logo, job or other advertising information including ad placements and lead presentations (the “Content”), as applicable, on the Fire Brick Group Network during the Term. Fire Brick Group may not modify Content other than to fit the format and look and feel of the Fire Brick Group Network or to display an excerpt (rather than all) of the long description that does not change the language that is excerpted. Except as set forth within the IO, Fire Brick Group will determine the daily frequency and location of Content through the use of Fire Brick Group’s service by its members. Fire Brick Group reserves the right to include new locations for existing campaigns as they are introduced in the Fire Brick Group service and used by Fire Brick Group’s users. Fire Brick Group reserves the right to reject, suspend or cancel any advertisement which does not comply with Fire Brick Group’s general policy concerning advertising content or technical specifications, as amended from time to time. Fire Brick Group further reserves the right to reject, suspend or cancel any Content which may subject Fire Brick Group to criminal or civil sanction or is otherwise, in the opinion of Fire Brick Group, offensive or objectionable.
2.Ownership, Licensing and Use of Leads. Each party hereby agrees that it will treat the Leads, including but not limited to personally identifiable information provided by individual web users, as Confidential Information as set forth in the Confidentiality Section below. Fire Brick Group shall retain all right, title and interest in and to the Leads. Client shall be granted a limited, non-transferable license to use the Leads solely for the purpose described in the Campaign Notes. Client shall not use the Leads in any manner not expressly authorized by Fire Brick Group. Client shall not provide the Leads to any third party unless for the purposes intended by the IO, and only so long as the recipients of such disclosures are bound by a written agreement not to disclose the information in the Leads or use it in any manner other than in furtherance of this Agreement. Client agrees to notify Fire Brick Group as soon as it learns of any actual or suspected unauthorized use of or access to the data in the Leads and provide reasonable assistance to Fire Brick Group in the investigation and prosecution of any such unauthorized use or disclosure.
3.Terms of Payment. Fire Brick Group will earn a monthly performance payment from Client during the Term (the “Monthly Performance Payment”) under the terms listed in the IO. Client has five (5) business days from date of delivery to return rejected Leads to Fire Brick Group. Leads can be rejected if Client finds the Leads to be false, duplicative or erroneous. If gross Lead counts are not confirmed, and/or rejected Leads are not returned within the five (5) business days, Leads delivered will be considered valid and billable based on Fire Brick Group’s internal reporting numbers. The Monthly Performance Payment will be calculated in accordance with the Type indicated in the IO, further described as follows:
“CPC” or “cost-per-click” rate is the dollar rate stated for each Click-Through. . A “Click-Through” results when a visitor clicks from any email job alert or career webpage hosted by Fire Brick Group on the Fire Brick Group Network, which links directly to Client’s Content.
“CPA” or “cost-per-acquisition, action, or application” (also known as “CPL” or “cost-per-lead”) refers to the dollar rate stated per unique Lead.
“CPM” refers to cost per one thousand impressions or views displayed to a visitor, for example, where viewers cumulatively click on a particular advertisement 1,000 times.
In the absence of payment terms in the IO, Fire Brick Group will invoice Client at the end of each calendar month for the Monthly Performance Payment as reported by Fire Brick Group. Client will pay Fire Brick Group within 30 days of the end of the calendar month for which it has been invoiced. For example, Fire Brick Group will send an invoice to Client dated August 31st, for all clicks delivered during the month of August and Client will pay Fire Brick Group by September 30th for the August 31st invoice.
Late payments for undisputed amounts due bear interest at the rate of 1½% per month, or if less, the highest rate permitted under law. Client agrees to pay all legal fees resulting from any collection proceedings arising from non-payment of amounts due, including but not limited to, reasonable attorney fees. In the event of a late payment of amounts due, all outstanding balances will become immediately due and will be subject to late payment fees as described above, and Fire Brick Group may suspend further performance without liability or penalty, in its sole discretion.
4.Taxes. All payments required under this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and other similar charges (“Taxes”). When applicable, such Taxes shall appear as separate items on invoices. Payment of such Taxes and other charges (excluding any taxes based upon the billing/collecting party’s net income) shall be the paying party’s sole responsibility. In the event the billing/collecting party is subsequently assessed by any governmental authority for having failed to collect any Taxes from the paying party, the paying party agrees to pay such assessed amounts, excluding any associated interest or penalties, upon the billing/collecting party’s written request.
5.Confidentiality. Except as otherwise provided herein, Fire Brick Group and Client each agree that all written information communicated to it by the other, whether before the Effective Date or during the term of this Agreement, and (a) marked as confidential or proprietary; or (b) regarding customers; human resources; financial costs, expenses or operations; inventory, purchasing or merchandising; or plans, strategies or forecasts (hereinafter collectively referred to as “Confidential Information”) shall be used only for the purposes of this Agreement, and that no Confidential Information of the disclosing party shall be disclosed to outside parties by the recipient party, its agents or employees without the prior written consent of the disclosing party. Client agrees to keep completely and unconditionally confidential the names of any institutions, corporations, investors, organizations, individuals, or groups of individuals introduced by Fire Brick Group or its associates. Client agrees not to divert or attempt to divert Fire Brick Group business customers or prospects based on information gained as a result of discussions with Fire Brick Group.
Each party agrees to take all reasonable precautions to prevent disclosure to outside parties of Confidential Information, including without limitation, the terms of this Agreement, except for information which is (i) not marked as confidential or proprietary or included in the categories identified above, (ii) already known by or available to the receiving party or its parent or subsidiaries at the time of disclosure; (iii) independently generated by either of the parties hereto or its parent or subsidiaries and not derived from the Confidential Information of the disclosing party, (iv) generally known or available to the public, or which may later become generally known or available to the public except where such knowledge or availability is the result of an unauthorized disclosure by one of the parties hereto, (v) disclosed to the receiving party or its parent or subsidiaries by a third party who is lawfully permitted to make such disclosure, (vi) made available by the disclosing party to a third party without a similar restriction; or (vii) required to be disclosed by either party or their parent or subsidiaries by law, regulation, court order or other legal process. This obligation of confidentiality shall cease two (2) years after the return of such Confidential Information to the disclosing party by the receiving party or two (2) years after the termination of this Agreement, whichever is later. The foregoing notwithstanding, Fire Brick Group will have the right to identify that Client is a customer of Fire Brick Group and may utilize traffic data for statistical and comparative purposes provided it is not disclosed in any manner which could reasonably identify Client.
6.Term; Termination. The term of this Agreement shall be as set forth in the IO or until terminated upon the mutual written agreement of both Parties. In addition, either party may terminate this Agreement in the event that the other party fails to perform any material covenant or otherwise breaches any material term of this Agreement: (i) immediately upon written notice to the other party if the nonperformance or breach is incapable of cure, or (ii) upon the expiration of thirty (30) days after such notice if the nonperformance or breach is capable of cure and has not been cured. Acceptance of any additional IOs shall be by written agreement of the Parties. Pricing for any renewal period is subject to change by Fire Brick Group from time to time.
7.Privacy. All parties represent and warrant that they are fully compliant with applicable privacy laws, and all federal and state regulations.
8.Audit. At its own expense but no more than once every twelve months, upon reasonable prior written notice and during dates and times mutually agreed upon by the Parties, either Party may have its independent auditors examine, books and records with respect to all transactions for which Monthly Performance Payments may be due, for the sole and limited purpose of verifying the other Party’s accurate reporting.
9.Client Credit. Fire Brick Group reserves the right to cancel the Agreement after conducting a credit screening of the Client.
10.Representations. Fire Brick Group will conduct its web advertising campaigns in accordance with industry standards. Fire Brick Group’s web site(s) and advertisements shall not contain, or contain links to, illegal content or websites, or to improper content or websites such as pornographic or gambling oriented content or websites.
11.Indemnification. Each party, at its own expense, will indemnify, defend and hold harmless the other party, its affiliates and their employees, representatives and agents (the “Indemnified Parties”), against any third party claim, suit, action, or other proceeding brought against the Indemnified Parties based upon, incident to, arising from, or in connection with the breach by the indemnifying party of any of its obligations hereunder. Further, Client agrees to indemnify and hold Fire Brick Group and Fire Brick Group’s web site affiliates harmless against any and all expenses and losses of any kind (including reasonable attorney’s fees and costs) incurred by Fire Brick Group or its web site affiliates in connection with any claim of any kind arising out of publication of the Content (including, without limitation, any claim of trademark or copyright infringement, libel defamation, breach of confidentiality, false or deceptive advertising or sales practices) and/or any material of Client to which users can link through the Content.
12.DISCLAIMER; Limitation of Liability. EXCEPT AS OTHERWISE STATED HEREIN, FIRE BRICK GROUP’S SERVICES AND LEADS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND FIRE BRICK GROUP DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, UNINTERRUPTED SERVICE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. Fire Brick Group shall not be liable for any advertisers or content providers whose content appear on the Fire Brick Group Network, nor the contents of any advertisements, web sites or web page. In the event that Fire Brick Group fails to display any Content in accordance with the IO (or in the event of any other failure, technical or otherwise), the sole liability of Fire Brick Group to Client shall be limited to placement of “make-good” advertising during a reasonable time after. In no event shall either party be responsible for any consequential, special, indirect, incidental, lost profits, or other indirect damages arising from the IO. Without limiting the foregoing, neither party shall have any liability for any failure or delay resulting from conditions beyond its control. Except for confidentiality and indemnification obligations, neither party’s liability (whether in contract, tort or otherwise) shall exceed the amount of revenue then due and payable to Fire Brick Group under the IO or Five Hundred ($500) Dollars, whichever is greater.
13.Remedies Cumulative. Except as otherwise expressly specified herein, the rights and remedies granted to each party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies that such party may possess at law or in equity.
14.Notice. All notices, requests, consents, and other communications under this Agreement shall be in writing (which includes paper, facsimile or email communication), and shall be delivered by hand, sent by reputable overnight courier service or electronic facsimile transmission (with proof of transmission) or mailed by first class certified or registered mail, return receipt requested, postage prepaid, to the Parties at the respective contact point set forth in the IO. Notices provided in accordance with this Section shall be deemed delivered (i) immediately if personally delivered or sent by email or electronic facsimile transmission, or (ii) if sent by overnight courier service, 24 hours after deposit with such courier service, or (iii) if sent by certified or registered mail, return receipt requested, 48 hours after deposit in the mail. Either Party may change the address to which notices, requests, demands, claims, or other communications hereunder are to be delivered by giving the other Party notice in the manner herein set forth.
15.Fire Brick Group Distribution Network. In order to deliver estimated and agreed upon volume, Fire Brick Group, at its own discretion and without obligation, may outsource any or all of the Content to sites either inside or outside the Fire Brick Group Network, which may include sites not owned by Fire Brick Group.
16.Assignment. Client may not resell, assign or transfer any of its rights hereunder. Fire Brick Group may assign this Agreement to an entity that acquires all or substantially all of Fire Brick Group’s assets or business.
17.Independent Contractors; No Agency. The Parties are independent contractors and nothing contained in this Agreement shall be construed to (i) give either Party the power to direct and control the daytoday activities of the other; (ii) create or constitute a partnership, joint venture, franchise, employment or agency relationship between the parties; or (iii) allow either Party to create or assume any obligation on behalf of the other Party for any purpose whatsoever.
18.Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, as if entered into and to be wholly performed in New York and without regard to conflicts of law principles. In any action brought hereunder, each party hereby consents to the jurisdiction of the Federal or state courts of the State of New York, and waives any jurisdictional, venue or inconvenient forum objections thereto.
19.Miscellaneous. No conditions other than those set forth in the IO or these Standard Terms shall be binding on either party unless expressly agreed to in writing, including, but not limited to any on-line end user license agreement or other on-line terms required to authorize access and/or start services under the IO. In the event of any inconsistency between the IO and the Standard Terms, the Standard Terms shall control. These Standard Terms, together with the IO, (i) may be amended only by written agreement executed by an authorized representative of each party; and (ii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. If any provision of this Agreement is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in force.