FieldTest MAster Advertising Agreement


 

MASTER TERMS AND CONDITIONS

 

1.  Introduction. FieldTest, Inc., a corporation located in the United States of America, provides you access to our products, services, code, and/or programs (each, a “Program”) for your use pursuant to these Master Terms and Conditions (“Master Terms and Conditions”), the terms and conditions, if any, of the Programs in which you participate (“Program Terms”), and the pricing and other terms and conditions within the FieldTest hosted self-service advertising platform (“Platform”).  In the Agreement, the following definitions apply:

 

i.      “Affiliate” means, with respect to an entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity;

ii.    “Agreement” means the Master Terms and Conditions, Program Terms, Platform pricing, and      other terms and conditions within the Platform or an Insertion Order;

iii.    “Content” means individually and collectively, all information you provide or is provided on your behalf, use, or approve (including our suggestions) in connection with the Agreement, including all ad content, creative, trademarks, service marks, ad target options, data, data feeds, and URLs;

iv.   “Distribution Network” means the network of advertising channels, including all forms of media, applications, and devices, through which your ads and/or Content are distributed, regardless of whether the display is through a computer, connected device, proprietary platform, mobile or cellular device, or tablet;

v.     “Distribution Network Entity” means any third party distributing your ads and/or Content through the Distribution Network;

vi.    “FieldTest Code” is proprietary software code and related tools that we may offer you in connection with a Program, and which are part of such Program;

vii.  “FieldTest Company” means FieldTest or an Affiliate of FieldTest;

viii.FieldTest Entities” are the FieldTest Companies and their officers, directors, consultants, contractors, agents, attorneys, employees, third-party service providers, and Distribution Network Entities; 

ix.    “Insertion Order” means an insertion order accepted by us;

x.    “Party” or “Parties” means you or us, and collectively, you and us;

xi.   “Payment Method” means the credit card, charge card, or bank account you provide in connection with use of an applicable Program(s);

xii.  “Personal Data” means any information relating to an identified or identifiable natural person;

xiii.we,” “us,” and “our” means FieldTest, Inc.; and

xiv. you” and “your” mean the person or entity electronically accepting the Agreement, your agents, advertising agency representatives, consultants, contractors, Advertiser (defined below), and any person or entity acting or apparently acting on your behalf, and your Affiliates that access a Program.

 

Capitalized terms used but not defined in these Master Terms and Conditions have the meanings given to such terms in the applicable Program Terms. Capitalized Terms used in any Program Terms or the Platform, but not defined therein, have the meanings given to such terms in these Master Terms and Conditions.  All definitions in the Agreement apply both to their singular and plural forms, as the context may require.

 

2.  Representative.  This Section applies if you are an advertising agency or other entity representing Advertisers (“Representative”).   “Advertiser” means an entity (including a sole proprietor) which is/will be enrolled in a Program by you.  a.  Authorization.  Representative represents, warrants, and covenants that:  (i) it is the authorized agent of the Advertiser and has the legal authority to enter into the Agreement on behalf of the Advertiser, make all decisions, and take all actions relating to each Advertiser’s account, and is entering into the Agreement, including to do each of the foregoing, (ii) by Representative enrolling an Advertiser in a Program, the Advertiser is also entering into the Agreement, and (iii) Representative will not, without our prior written consent:  (a) make any representation, guarantee, condition, or warranty concerning a Program or a FieldTest Entity, (b) make any commitments (e.g., guarantees as to any campaign) to an Advertiser or potential Advertiser regarding any Program, or (c) negotiate any terms or conditions related to any Program which may affect the rights, protections, and/or obligations of a FieldTest Entity, and/or that are inconsistent with the Agreement.  Upon our request, Representative will promptly deliver to us written verification that designates Representative as the Advertiser’s agent and authorizes Representative to act on the Advertiser’s behalf in connection with the Agreement.  In the event of a termination of your relationship with an Advertiser, Representative agrees that such Advertiser may continue to use the ads and Content, including account and performance history with respect to Advertiser’s ads.  b.  Payment Liability.  Without limiting any other provision of the Agreement, Representative and each Advertiser will be jointly and severally liable for all payment obligations pursuant to Sections 5 and 6 below, and you hereby waive any Law (defined below) that may require us to proceed against one or more of you prior to proceeding against any others who may also be liable.  Notwithstanding the foregoing, in the event Representative breaches or allegedly breaches Section 2a.(i), above, Representative will be obligated to promptly pay all such amounts due pursuant to the Agreement.  You acknowledge that we may directly contact any Advertiser represented by Representative if we have not received payment for such Advertiser’s account.

 

3.  Use of Content. In order to participate in any Program, you grant the FieldTest Entities a non-exclusive, royalty-free, worldwide license in connection with all Programs to: (i) use, copy, adapt, reformat, recompile, truncate, edit, and/or modify any part of the Content for public performance, public display, and distribution, (ii) access, index, and cache the website(s) to which your ads link, or any portion thereof, by any means, including web spiders and/or crawlers, (iii) create and display in connection with your ads, copies of any text, images, graphics, audio, or video on the websites to which your ads link, and (iv) distribute your ads through the Distribution Network. None of the FieldTest Entities will have any liability for your ads or Content. A FieldTest Entity may refuse, reject, cancel, or remove any ad, or Content at its discretion at any time. Your ads may be subject to inventory availability, and the final decision as to ad relevancy is at our discretion. We do not guarantee that your ads will be placed in, or available through, any part of the Distribution Network, nor do we guarantee that your ads will appear in a particular position or rank.

 

4.  Program Access. You will not: (i) use any automated means, including agents, robots, scripts, or spiders to access, monitor, scrape, or manage your account(s) with us, or to access, monitor, scrape or copy the Platform or FieldTest Company systems or any data therein, except those automated means expressly made available by us or authorized by us in advance in writing (e.g., third-party tools approved by us), (ii) interfere or attempt to interfere with the proper working of the Platform, Programs, FieldTest Company systems, or Distribution Network, (iii) use or combine our Program(s) with software offered pursuant to any open source license by the Open Source Initiative or any substantially similar license, which creates any obligation with respect to our Program(s), including the requirement to make the Program(s) available in source code format, or grant to any third party any rights to, or immunities under, our intellectual property or proprietary rights in any Program, or (iv) provide or make available to us, our Affiliates, or Distribution Network Entities any Personal Data of visitors, users, or customers of your website(s) in connection with your access or use of the Program(s) unless you have the legal right and permission necessary to do so under applicable Law (defined below). Our Programs may only be used by you, including password(s) related to your account(s), and may not be used by, or made available to, any third party, except your agents, representatives, consultants, contractors, and any person or entity acting or apparently acting on your behalf, or your Affiliates. You will promptly notify us in writing if you become aware of a potential breach of security relating to your account(s) with us (e.g., the unauthorized disclosure or use of your username or password).  Except with our prior written consent, you may only use data made available to you in connection with a Program, including data that is obtained, collected, or derived as a result of any targeting parameters, for internal use to manage your advertising account(s) with us, and you agree not to publish such data, create profiles of users, or use such data for retargeting. You agree that your ads and Content will comply with our policies and specifications, which we may change from time-to-time, and the policies and specifications of any Distribution Network Entity, which may also change from time-to-time. 

 

5.  Charges; Fees.  You agree to pay us for all charges and fees you incur in connection with each Program in which you enroll, in the currency indicated in the Platform, including fees for use of geographic data or other data, or fees charged to us by third party service providers for the inclusion of data in a Program.  You also agree that our measurements are the definitive measurements used to calculate your charges and fees. 

 

6.  Payment Terms.  a.  When you supply us with a Payment Method in connection with a Program, you authorize us to bill your Payment Method for all charges and fees, including any recurring payments, you incur in connection with each Program you participate in. The types of Payment Methods that we accept, and the timing of the billing of the charges and fees may vary according to each Program.  Notwithstanding, we do not knowingly accept debit cards, and you should not provide a debit card as a form of payment. The terms of your Payment Method are determined by the agreement(s) between you and your card issuer or financial institution.  b.  You agree to keep your Payment Method information on file with us current (such as your address, card number, and expiration date), and you also authorize us to update your Payment Method information with data we obtain from the issuer of your credit card or charge card, from MasterCard, Visa, or American Express, or your financial institution. In addition, you authorize us to retain your Payment Method information until such time as you revoke this authorization in accordance with our reasonable procedures. Any revocation by you of this authorization will become effective when all charges and fees associated with your use of the Programs have been fully satisfied, as reasonably determined by us. Your revocation of this authorization will have no effect on your liability for charges and fees that you have incurred in connection with your use of a Program prior to such revocation.  c.  All payments of charges, fees, and/or deposits are non-refundable and our property. Any dispute about charges, fees, and/or deposits must be submitted to us in writing within 30 days of the date you incurred such charge and fee or made the deposit, otherwise you waive such dispute, and such charge, fee, and/or deposit will be final and not subject to challenge. If you fail to make payment as set forth herein, you will pay (i) a late fee equal to 1.5% monthly (or the highest amount allowed by law if less than 1.5% monthly) of all past due charges and fees, and (ii) all reasonable expenses (including attorneys’ fees and costs) incurred by us in collecting past due charges and fees. Charges and fees do not include any applicable sales, use, value-added, withholding, excise, or any other taxes or government charges, which are payable by you and are in addition to any amounts due to us hereunder.  d.  Accounts with no activity for more than 24 months will be closed by us and will be assessed an account closing fee not to exceed the lesser of U.S. $25 (or its equivalent) or the balance in the account. If a balance remains, we will attempt to refund any portion of such balance that may be owed to you. If we are unable to refund any such balance using your contact information on file with us, we will dispose of the balance pursuant to the Agreement and our policies and procedures.

 

7.  Termination.  The Agreement continues until terminated by either you or us as set forth herein.  Except as set forth in certain Program Terms, you or we may terminate the Agreement and/or your participation in any Program for any or no reason, and we may suspend or limit your participation in any Program or part thereof, including removing your ads.  In addition, we reserve the right at any time to modify or discontinue offering any Program or part thereof.  The FieldTest Entities will not have any liability regarding the foregoing decisions. Upon termination of any Program Terms or the suspension or discontinuation of any Program or your participation therein, your outstanding payment obligations incurred under each such Program will become immediately due and payable. The defined terms of the Agreement, Sections 2, 4 (fourth sentence only), 5 (to the extent of accrued but unpaid charges and fees only), 6 (to the extent of accrued but unpaid charges and fees only), and 7 through 17 of these Master Terms and Conditions, and those provisions specified in any Program Terms will survive termination of the Agreement.

 

8.  Confidentiality. “Confidential Information” means information disclosed by you to us or us to you, either directly or indirectly, in writing, orally, or by inspection of tangible objects marked as “Confidential,” “Proprietary,” or some similar designation, or would under the circumstances appear to a reasonable receiving Party to be confidential or proprietary. Confidential Information may also include information disclosed to a disclosing Party by third parties. Confidential Information will not, however, include any information which:  (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party through no fault of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party’s files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.  The receiving Party will not at any time (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing Party, except to employees, contractors, agents, or Affiliates, in each case who have a legitimate need to know such Confidential Information and are bound to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, or (b) use, reproduce, or copy any Confidential Information of the disclosing Party, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving Party by the disclosing Party, or in connection with, or as set forth in the Agreement. The receiving Party may disclose Confidential Information of the disclosing Party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure, and takes reasonable steps to protect the information from public disclosure, and provided further, that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.  Notwithstanding anything to the contrary in the Agreement, (x) without consent, either Party may disclose the Agreement (or the existence of the Agreement) to bona fide potential investors or prospective purchasers of a portion of or all of its assets or beneficial ownership interests, provided such disclosure is subject to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, and/or as required by law, including any governmental or regulatory filings, (y) all data and information gathered or received by us in connection with providing the applicable Program, including campaign performance data, engagement and statistics/performance metrics, may be shared with and used by the FieldTest Entities (and you acknowledge the country of the FieldTest Entity receiving the data or information may not afford the same level of protection of such data as the country in which the data or information was collected), and/or in anonymous form with selected third parties.

 

9.  Representations. You represent, warrant, and covenant that:  (i) you have the right and/or authority to enter into the Agreement; (ii) all Content is, and will be updated to remain, current and accurate; (iii) all Content is free of viruses and/or other computer programming routines that may damage, interfere with, or expropriate any FieldTest Company system data or information; (iv) a click on your ad will not:  cause damage to a user’s computer, download a software application, change a user’s settings, or create a series of sequential, stand-alone ads (including by pop-up or pop-under window); (v) all Content is either original to you, or you have secured all necessary rights and licenses for its use as contemplated by the Agreement, and you are responsible for all royalties, payments, and fees with respect thereto (e.g., performing rights society fees); (vi) you will not engage in, authorize, or cause others to engage in, spamming or improper, malicious, or fraudulent clicking, impression, or marketing activities relating to any Program; (vii) all Content (including products and services referenced therein), the website(s) to which the ads link, all emails, newsletters, and other materials and technology in connection therewith, any tools or code you use or make available in connection with a Program, and/or any act or omission by you relating to or in connection with a Program:  (a) does not violate any applicable law, statute, directive, ordinance, treaty, contract, or regulation, as well as any FieldTest Entity policy, guideline, or specification provided or made available to you at least ten (10) days prior to the applicable campaign start date set forth in the Platform (collectively, “Laws”); (b) does not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any person or entity, (c) does not breach any duty or right of any person or entity, including rights of publicity and/or privacy, and (d) is not false, deceptive, misleading, unethical, defamatory, libelous or threatening, or contain pornographic, hate-related or violent content; (viii) you will not reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of any Program, or portion thereof; (ix) you will not attempt to or circumvent any Program security measure or privacy feature; (x) you will comply with any trade sanction, and/or import or export regulation applicable to your use of our Programs, and obtain all necessary licenses to use, export, re-export, or import our Programs as permitted and applicable; and (xi) you will not provide access to the Programs, except to your agents, representatives, consultants, contractors, and any person or entity acting or apparently acting on your behalf, or your Affiliates, who are bound in writing by use and confidentiality restrictions which are no less protective of us than those contained in the Agreement.

 

10.  Indemnification.  Each Party will indemnify, defend, and hold harmless the other Party (and in our case, also the FieldTest Entities) and its and their, as applicable, Affiliates and its and their respective officers, directors, consultants, contractors, agents, attorneys, and employees (collectively, “Indemnified Entity”) from all third-party claims, whether actual or alleged, to the extent arising from a Party’s breach of the Agreement (“Claims”).  In addition, you will indemnify, defend, and hold harmless each FieldTest Indemnified Entity from all third-party claims, whether actual or alleged, that arise out of or in connection with your ads and/or Content, your use of any Program, Platform, FieldTest Company system, or your website (collectively, also “Claims”).  The indemnifying Party is solely responsible for defending all Claims against each Indemnified Entity, subject to such Indemnified Entity’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from the Claims against an Indemnified Entity, provided that the indemnifying Party will not agree to any settlement that imposes any obligation or liability on an Indemnified Entity without its prior written consent.

 

11.  Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, (a) EACH PROGRAM (INCLUDING ANY “BETA”/EXPERIMENTAL FEATURES), DISTRIBUTION NETWORK, PLATFORM, FIELDTEST COMPANY SYSTEM, AND FIELDTEST CODE IS PROVIDED ON “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND YOUR USE THEREOF IS AT YOUR OWN RISK, AND (b) WE AND YOU DISCLAIM ON BEHALF OF EACH OF OURSELVES (AND IN OUR CASE, THE FIELDTEST ENTITIES) ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

 

12.  Limitation of Liability. EXCEPT FOR SECTIONS 5 AND 6 (FOR ACCRUED BUT UNPAID CHARGES AND FEES), LIABILITY ARISING FROM BREACH OF SECTION 8 (CONFIDENTIALITY), ABOVE, AND/OR THE INDEMNIFICATION OBLIGATION UNDER SECTION 10, ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (a) ANY LIABILITY OF YOU AND/OR THE FIELDTEST ENTITIES IN CONNECTION WITH ANY PROGRAM, UNDER ANY CAUSE OF ACTION OR THEORY, IS LIMITED TO THE AMOUNT PAID OR PAYABLE BY YOU PURSUANT TO THE AGREEMENT IN THE THREE-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM(S), AND (b) IN ADDITION TO ANY OTHER LIMITATION(S) IN THE AGREEMENT, NEITHER YOU NOR THE FIELDTEST ENTITIES ARE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS, GOODWILL, LOSS OF DATA, OR OTHER INTANGIBLE LOSSES ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT.  IN ADDITION, YOU WILL NOT HOLD A FIELDTEST COMPANY RESPONSIBLE FOR THE SELECTION OR RETENTION OF, OR ANY ACTS, ERRORS, OR OMISSIONS BY, ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT, INCLUDING WITH RESPECT TO DISTRIBUTION OF YOUR ADS AND/OR CONTENT, OR CLICKS AND/OR IMPRESSIONS BY ANY THIRD PARTY ON YOUR ADS, REGARDLESS OF THE INTENT OF SUCH THIRD PARTY.

 

13.  Notices. We may give notices to you by posting on the Platform, or by email to the address provided by you. You agree to keep your contact and account information current and correct, and promptly notify us in writing of any changes to such information. You further agree to send all notices to us via recognized overnight courier or certified mail, return receipt requested, to:  Chief Legal Officer, FieldTest, Inc., 2118 Wilshire Blvd. #275, Santa Monica, CA  90403.

 
14.  Choice of Law; Venue. The terms of the Agreement and any dispute relating thereto or between you and us will be governed by the laws of the State of California, without regard to conflict/choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. You and we agree to submit to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California. 

 

15.  Class Action Waiver.  YOU AGREE THAT ANY CLAIM AGAINST ANY FIELDTEST ENTITY WILL BE ADJUDICATED ON AN INDIVIDUAL BASIS, AND WILL NOT BE CONSOLIDATED IN ANY PROCEEDING WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PERSON OR ENTITY. AS SUCH, YOU ALSO AGREE THAT YOU WAIVE ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN A CLASS ACTION SUIT AGAINST ANY FIELDTEST ENTITY.  You may not be a representative of other potential claimants or a class of potential claimants in any dispute, nor may two or more individuals or entities’ disputes be consolidated or otherwise determined in one proceeding.

 

16.  Statute of Limitation/Time to File an Action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of any Program must be filed within one (1) year after such claim or cause of action arose or be forever barred.


17.  Miscellaneous. The Agreement constitutes the entire agreement and understanding between you and us regarding the subject matter contained herein, and supersedes all other agreements, proposals, representations, claims, and communications, written and oral, regarding the subject matter contained herein (including any additional, different, or conflicting terms on any of your forms, emails, or papers).  No terms or conditions other than those set forth in the Agreement will be binding on us unless expressly agreed to by us in writing.  Without limiting the foregoing, in no event will any click wrap or other electronically accepted agreement (excluding any electronic signature of the Agreement) constitute a license or binding agreement, including even if we accept such terms.  The terms of any specific Program Terms govern only that Program, and not any other Program, except as specifically referenced in such Program Terms. If there is a conflict between the Master Terms and Conditions, any Program Terms, and the Platform, the conflict will be resolved according to the following order of precedence:  (1) Platform; (2) Program Terms, and (3) Master Terms and Conditions. Only a written instrument specifically waiving compliance that is executed by whichever of you or us is entitled to waive such compliance may waive any term and/or condition of the Agreement. No waiver by you or us of a breach of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar economic effect. Except for your payment obligations, neither we nor you will have any liability under the Agreement by reason of any failure or delay in the performance of our or your obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond our or your reasonable control. You and we are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between you and us. Except as otherwise set forth in the Agreement, neither you nor we will have any right, power, or authority to create any obligation or responsibility on behalf of the other, and the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. Notwithstanding the foregoing, you acknowledge and agree that the FieldTest Entities will be third-party beneficiaries to the Agreement and will be entitled to directly enforce, and rely upon, any provision in the Agreement which confers a benefit on, or rights in favor of, them. You may not assign, sublicense, or transfer the Agreement or any right or duty under the Agreement except in connection with the reorganization, reincorporation, merger or sale of all or substantially all of your assets or stock.  Any assignment, transfer, or attempted assignment or transfer in violation of this Section will be void and of no force or effect. We and our subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time-to-time the Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity such as to our Affiliate(s).  Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by you with respect to or relating to any Program and/or the Platform, may be used by us without compensation or attribution to you, and in connection therewith, you grant the FieldTest Entities a perpetual, irrevocable, fully paid-up, unrestricted right and license to use any or all of the foregoing.  The Programs are proprietary to us and are protected by applicable state, federal, and international intellectual property laws.  We retain all rights, title, and interests in the Programs, together with all derivative works, modifications, enhancements, and upgrades, but excluding your Content. Any rights not expressly granted in the Agreement are reserved by you or us, as applicable, and all implied licenses are disclaimed. As used in the Agreement, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity, and the words “will”, “shall”, and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. Upon prior notice, we may change the Agreement at any time by posting such revised Agreement on the Platform or by email, and such revised Agreement will supersede and replace the earlier Agreement. You acknowledge and agree that Services and obligations to be performed by us hereunder may be performed by the FieldTest Entities.

 
18. Electronic Signatures Effective. a. By clicking on the “I Agree” or similar check-box/button, you create an electronic signature to the Agreement, establishing a valid and binding contract. Therefore, you agree to accept these terms and conditions and any other agreement contained or referenced herein.  In addition, you agree that we may supply you a copy of the Agreement in electronic form. Please print or save a copy of the Agreement for your records. You also may choose to receive a copy of the Agreement in non-electronic form at any time by submitting a written request to us at the address set forth in Section 13, above.  b.  You may choose to withdraw your consent to receive the Agreement in electronic form. Withdrawing your consent to receive the Agreement in electronic form does not change your existing obligations to us under the Agreement. Instead, withdrawing your consent means that you wish to have our relationship with you governed by a non-electronic form of the Agreement. If you wish to withdraw your consent to receive the Agreement in electronic form and to instead enter into a non-electronic form of the Agreement, please send a letter and self-addressed, stamped envelope to the address set forth in Section 13, above. We then will send you a non-electronic form of the Agreement. Your withdrawal of consent will become effective when we mail to you a copy of the non-electronic form of Agreement, at which point our relationship will be governed by the terms of such Agreement. In either instance, the obligations that you incur pursuant to the electronic form of the Agreement, prior to the effective date of the withdrawal of your consent, will remain unchanged until they are fully satisfied by you. c.  In order to access and retain the electronic Agreement, you must have access to the Internet, either directly or through devices that access web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer or other access device). We will notify you of any material changes in the hardware or software requirements needed to access and/or retain the Agreement that create a material risk that you will not be able to continue to access and/or retain the electronic Agreement.

 
 

PROGRAM TERMS
 

Display Advertising Program Terms  

 

If you participate in the Display Advertising Program, the following Program Terms apply, which are also governed by the Master Terms and Conditions, above.

 

1. Access.  We provide you with access to our Program, including the Platform or Insertion Order, for the creation and purchase of advertising for your or your client’s advertising campaigns (“Display Advertising Program”).  We may offer additional services beyond those described herein, including third-party services. The charges and fees for such services will be shown in the Platform, an Insertion Order, or otherwise mutually agreed to by the Parties.  In the event that you request our help to use the Platform, whether verbal or in writing, you approve each action we perform on your behalf, and agree that you are fully responsible for such assistance.

 

2.  Campaigns.  You agree to pay for all impressions and/or clicks on the ads that are delivered for each campaign you set up through the Platform or purchased through an Insertion Order.  If a campaign is approved, the ads will be displayed as inventory becomes available on a space-available basis, and are not guaranteed to appear in specific locations within the Distribution Network. However, we will use commercially reasonable efforts to deliver the ads as requested in the Platform or Insertion Order, but cannot guarantee that the ads will reach their intended audience in every instance.  Accordingly, we do not guarantee the level of activity that the ads will receive, such as the number of impressions and/or clicks.  All ads must comply with our then current policies and specifications located at http://www.fieldtest.la/ad-policy which we may change from time-to-time upon prior notice. 

 

3. Audience Tools.  Any additional fees for use of audience tools provided or made available by us (e.g., fees for targeting based on third party audience data) will be set forth in the Platform or included in the CPMs for campaigns managed by us. You may use such audience tools only, as applicable, for the purpose of managing the campaigns through the Platform for which you have paid the audience tool fees, or for the campaigns booked through an IO for which the audience tool fees have been included within the CPMs. In addition, you agree not to extract or recreate any portion of the data or audience segments underlying such audience tools.

 

4.  Campaign Reporting; Analytics.  You will have access to campaign performance data through the online reporting interface within the Platform or otherwise as provided by us, which data is solely for internal use to manage your or your client’s applicable campaign(s) with us (i.e., only those campaigns for which the data was collected), and you agree not to use such performance data for any other purpose, including publishing such data, creating profiles of users, or using such data for retargeting.  In addition, we may provide campaign analytics, such as click, conversion, and/or attribution tracking, subject to the Analytics Program Terms below. 

 

5. Termination; Effects of Termination. Notwithstanding Section 7 of the Master Terms and Conditions, you may not terminate these Display Advertising Program Terms until the end date of all your campaigns as set forth in the Platform or Insertion Order; provided however, you may pause your campaign(s) at any time through the Platform or by written request to us, but it may take up to 24 hours before your ads stop appearing within the Distribution Network. Accordingly, you are responsible for paying for all impressions and/or clicks on your ads that are delivered.  While your payments and deposits are non-refundable pursuant to Section 6(c) of the Master Terms and Conditions, if you pause your campaign(s), you have six (6) months from the date of our receipt of your payment or deposit to use such payment or deposit, otherwise the remaining balance of your payment or deposit is forfeited.  Sections 3 (excluding second sentence), 4 (data and profile restrictions only), and 5 of these Display Advertising Program Terms will survive termination of these Display Advertising Program Terms.

 

 

Analytics Program Terms

 

If you participate in the Analytics Program, the following Program Terms apply, which are also governed by the Master Terms and Conditions, above.

 

1. Use. We may provide you with Analytics Code in connection with a Program(s) for your or your client’s use (“Analytics Program”) by making such code available in the Platform.  “Analytics Code” is FieldTest Entity code for insertion on your website, online store, and/or elsewhere as mutually agreed in writing to enable the analytical tools available for your account. Provided that you install the Analytics Code, it will be delivered into the Internet browser of your users during their interaction with your website and/or online store. Subject to the terms of the Agreement, we grant you a non-exclusive, revocable, non-transferable, non-sublicensable, limited, internal-use right in connection with your applicable Program solely to use, execute, and display the Analytics Code on your website.  During the Analytics Code set-up process, we may append certain parameters to the URL associated with your ad to enable the Analytics Program. You may not edit or delete any such parameter, which would prevent the proper functioning of the Analytics Code and render impaired or inaccurate results. In connection with the Analytics Program, you may not, directly or indirectly, transmit to a FieldTest Entity any Personal Data of your users unless you have the legal right and permission necessary to do so under applicable Law. 

 

2. Your Website. While using the Analytics Code, you will:  (i) obtain all rights and permissions necessary for the FieldTest Entities to use the Analytics Program data, including statistical and traffic information collected by us and/or provided by you, as contemplated under the Agreement, and (ii) maintain and adhere to a privacy policy including on your website and/or online store, which must at a minimum:  (a) be available as a clear and conspicuous link from the main page of your website and any other location where visitors may provide personal data; (b) comply with all applicable Laws, which may require providing visitors with the following Personal Data rights:  access, rectification, erasure, and data processing restrictions; (c) accurately disclose the data collection, use and disclosure practices applicable to such website, including (i) the use of cookies, pixels, beacons, cross-device identifiers, locally stored objects, clear gifs, or other similar technologies for purposes of monitoring and/or targeting users, (ii) the types of information being collected, and how such information will be used by you and/or third parties, and (iii) that you will share such information with third parties, (d) disclose the use of one or more third parties for ad serving activities, and (e) include a conspicuous link to a functional opt-out page for users to opt out of targeted / interest-based advertising. 

 

3. Effects of Termination. Notwithstanding Section 7 of the Master Terms and Conditions, you may not terminate these Analytics Program Terms until the end date of all your campaigns as set forth in the Platform; provided however, you may pause your campaign(s) at any time through the Platform as set forth in the Display Advertising Program Terms.  Upon termination of these Analytics Program Terms or the Program Terms of the Program for which you have been provided the Analytics Code, (i) you must promptly remove the Analytics Code from your website, online store, and anywhere else such code appears under your possession, custody, control, and (ii) Section 2 of these Analytics Program Terms will survive. 


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The Agreement, including the Master Terms and Conditions and Program Terms, was last updated on and is effective as of July 19, 2018.

 

FieldTest, Inc.

2118 Wilshire Blvd. #275

Santa Monica, CA  90403