Last modified: August 2015
These Standard Terms and Conditions and the Insertion Order (collectively, the "Agreement") are entered into by and between POP SOLUTIONS, LLC d/b/a Ping Mobile ("Ping Mobile"), a California corporation, with its business offices located at 8950 W. Olympic Blvd. Suite 649, Beverly Hills, CA 90211 , and the party specified as the Client in the Insertion Order (the "Advertiser") for the term of the advertising campaign stated in the Insertion Order.
1. Ping Mobile Service. Ping will provide Advertiser with access to and use of Ping's mobile application services platform and related systems and network connections (the "Ping Mobile Services") to facilitate mobile advertising. The Ping Mobile Services include but are not limited to interactions with computer systems of third-party wireless carriers who have entered into agreements directly or indirectly with Ping ("Carriers") and/or other service providers designated by a Carrier and/or by a Party ("Ancillary Carriers") (and collectively "Network Operators").
2. Promotions. Subject to the terms and conditions of this Agreement, Ping Mobile agrees to use reasonable commercial efforts to provide the mobile advertising promotions ("Promotions") as specified in the Insertion Order. Ping Mobile shall measure all advertising performance in accordance with its standard methodologies and protocols. Ping Mobile reserves the right to alter the campaign periods specified on the Insertion Order if it is reasonably necessary to accommodate Ping Mobile's trafficking needs. In such cases, Ping Mobile will make available to Advertiser reasonably comparable Promotions.
3. Grant of Rights. Advertiser grants Ping the rights to access, index and expose to visitors of websites operated by third parties the Advertiser content identified in the applicable Insertion Order. Advertiser also grants Ping a limited, revocable, non-exclusive, royalty-free right and license to use, Advertiser's name, logo, trademarks and any other proprietary content provided and approved for use by Advertiser, solely for the purpose set forth in this Agreement, and subject to Advertiser's standard trademark and content usage guidelines and quality review as provided to Ping. Such license does not confer on Ping or any other party any other rights with respect to Advertiser's intellectual property. Ping agrees to use commercially reasonable efforts to promptly remove, or cause to be removed, any Advertiser Content from any Ping publisher website that Advertiser deems objectionable, upon receipt of such written notice from Advertiser.
4. Advertising Content. Advertiser will, at its own expense, provide the advertising content to be used in connection with the Insertion Order ("Advertising Content") to Ping Mobile in a mutually agreed format within 5 business days after the date of the last signature on the Insertion Order (the "Effective Date") of this Agreement. Advertiser shall be solely responsible for the creation and updating of the advertising content, and upon execution of this Agreement, Advertiser shall supply Ping Mobile with all information useful for accessing the advertising content, including, without limitation, file formats and layouts, documentation and other technical information. At Ping Mobile's reasonable request, agency, partner or Advertiser will provide support to Ping Mobile to facilitate Ping Mobile's access and use of the Advertising Content hereunder. The Advertising Content must comply in all respects with the Mobile Marketing Association's Mobile Advertising Guidelines, as amended from time to time by Ping Mobile or other party authorized to do so. Ping Mobile shall have the right to remove the Advertising Content from the at any time without prior notice to the Advertiser if it believes that posting such Advertising Content will have an adverse impact or if it believes in good faith that such Advertising Content is in violation of this Agreement, the Editorial Guidelines or Productions Specifications, any applicable law or third party rights, or may tend to bring, disparagement, ridicule, or scorn upon Ping. Ping Mobile will not be liable in any way for the removal of any such Advertising Content. Further, Advertiser represents and warrants that no Promotional Material will (a) infringe or violate any right of any third party, including without limitation, copyrights, trademark rights, and rights of privacy, publicity or freedom from defamation, (b) violate any governmental law, rule or regulation, including without limitation, laws relating to obscenity, (c) contain any virus, worm, Trojan horse or other contaminating or destructive feature, or (d) contain any offensive material.
5. Delivery and Maintenance of the Promotions. The parties acknowledge and agree that there is limited advertising space in the format of mobile marketing in which Ping Mobile displays search results. Ping Mobile may modify the content of the advertising, with Advertiser's consent, in order to convert the content of advertising into text or such other format necessary to fulfill Ping Mobile's obligations under this Agreement. Ping Mobile shall have sole control and final approval rights on how the content of advertising is displayed on the Ping Mobile Service; provided however, that Ping Mobile will consider input from Advertiser in good faith.
6. Modifications to Service. Ping Mobile reserves the right to redesign or modify the organization, structure or "look and feel" of the Ping Mobile Service(s) at any time without notice. In the event such modification affects the placement of the Promotions, Ping Mobile will notify Advertiser and will work with Advertiser to display the Promotions in a comparable manner on the Ping Mobile Service(s).
7. Fees and Payments. All fees and payment terms are clearly defined in each individual applicable Insertion Order.
8. Term & Termination. This Agreement will commence on the date of the last signature to the Insertion Order and terminate on the date all the Promotions specified on the Insertion Order have been delivered. Either party may terminate this Agreement upon thirty (30) days prior written notice to the other. Advertiser shall pay Ping Mobile for all unpaid amounts due for advertising costs and fees.
9. Warranty and Disclaimer. Advertiser represents and warrants to Ping Mobile that: (i) Advertising Content will be accurate and will be continuously and accurately updated under the terms and conditions of this Agreement; (ii) Advertiser has all necessary rights for the advertising hereunder; (iii) Advertiser has the power and authority to enter into and perform Advertiser's obligations under this Agreement; (iv) to the best of Advertiser's knowledge, it currently has no restrictions that would impair its ability to perform its obligations under this Agreement. PING MOBILE MAKES NO REPRESENTATION, WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PING MOBILE SERVICE(S) THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PING MOBILE DOES NOT WARRANT OR GUARANTEE THAT THE PING MOBILE SERVICE(S), ITS SERVICES OR OPERATION THEREOF WILL BE UNINTERRUPTED OR WILL MEET ADVERTISER'S REQUIREMENTS.
10. Indemnification. Advertiser agrees to defend, indemnify, and hold Ping Mobile and its affiliated companies harmless from any liability, damages, costs and expenses, including reasonable attorneys' fees, relating to: (i) a material breach of any material representation or warranty provided by Advertiser under this Agreement; (ii) a claim that Advertising Content as provided to Ping Mobile by Advertiser hereunder (or as modified by Ping Mobile as contemplated herein or at Advertiser's direction) infringes or misappropriates any third party intellectual property right; (iii) a claim that Advertising Content as provided to Ping Mobile by Advertiser hereunder (or as modified by Ping Mobile at Advertiser's direction) is libelous or defamatory or otherwise violates the rights of any third party; or (iv) a claim related to any virus, worm or Trojan horse or other contaminating or destructive features contained in the Promotions. Ping Mobile will promptly notify Advertiser in writing of any such claim. Ping Mobile shall give Advertiser sole control over the defense and/or settlement of any such claim, except that Advertiser will not agree to any settlement or compromise that would require Ping Mobile to make any payments or bear any obligations unless Advertiser obtains Ping Mobile's prior written approval. Ping Mobile shall give Advertiser reasonable assistance in such defense at Advertiser's expense. Ping Mobile will have the right to participate in the defense of any such claim and/or to be represented by counsel of its own choosing.
11. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN, Ping Mobile SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME OR GOODWILL, THE REMOVAL OF ANY PROMOTIONS, ANY DELAY IN DISPLAYING OR THE FAILURE TO DISPLAY PROMOTIONS, OR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PING MOBILE'S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY ADVERTISER FOR THE PROMOTIONS WHICH ARE THE BASIS OF LIABILITY.
12. Confidentiality. Each party agrees that all business, technical and financial information it obtains from the other party that is marked "Confidential" or "Proprietary," is the confidential property of the disclosing party ("Proprietary Information" of the disclosing party). Except as expressly allowed herein, the receiving party will hold in confidence and not use or disclose any Proprietary Information of the disclosing party. The receiving party shall not be obligated under this Section with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without access to such Proprietary Information. The receiving party shall not be obligated under this Section with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) was independently developed by employees or consultants of the receiving party without access to such Proprietary Information.
13. Notice. All notices, demands, requests and other communications in connection with this Agreement shall be deemed given when personally delivered, or three (3) days after being sent by the United States of America first-class mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows or to such other address as such party last provided to the other by written notice:
8950 W. Olympic Blvd., Suite 649
Beverly Hills, CA 90211
14. Miscellaneous. Each party shall be and act as an independent contractor and not as a partner, joint venturer, or agent of the other. This Agreement and the rights, obligations and licenses herein, shall be binding upon, and inure to the benefit of, the parties hereto and their respective heirs, successors, assigns, and personal representatives. Neither party shall assign this Agreement in whole or part without the prior written consent of the other party except that either party may assign this Agreement in connection with a merger, reorganization or sale of a substantial part of the assets or business to which this Agreement relates. This Agreement contains the entire understanding of the parties regarding its subject matter and supersedes all other agreements and understandings, whether oral or written. Advertiser agrees that Ping Mobile may issue a joint press release announcing the partnership and campaign/s with Ping Mobile, as well as case studies to the media. No changes or modifications or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties. Any additional or conflicting conditions, printed or otherwise, appearing on any orders, copy instructions or other documents will be of no effect. If any portion of this Agreement is held to be illegal, invalid, or unenforceable, that portion shall be limited to the minimum extent necessary; the remaining provisions shall remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to the conflicts of laws provisions thereof, and the parties consent to the exclusive jurisdiction of the state and federal courts located in New Jersey. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and reasonable attorneys' fees.