Advertiser Terms and Conditions
These Resilion Advertiser Terms and Conditions (the “Agreement”) are entered into by and between Resilion, LLC (“Resilion”) and the advertiser or agency that signs a Resilion Insertion Order (“Advertiser”) and set forth the terms and conditions that govern Advertiser’s use the Resilion direct navigation and sponsored links program (the “Program”). This Agreement governs Advertiser’s use of the Program. Any insertion order executed with Resilion will be deemed a part of this Agreement.
“Advertiser” means the entity or individual that is using the Program to acquire website visits. If Advertiser is an agency or an online marketing firm executing an insertion order on behalf of a third party, Advertiser represents and warrants that such third party is bound by this Agreement to the same extent as Advertiser.
“Advertiser Data” means the data provided by Advertiser to Resilion, which may include text (title and description and display URL for sponsored links), a destination URL where Advertiser will receive Visits, keywords and/ category options and selections for targeting and other targeting options (such as, for example, keyword matching options).
“Resilion Network” means the network of traffic partners who deliver Visits to Resilion advertisers.
“Campaign” means an Advertiser’s advertising campaign across the Resilion Network.
“Visit” means the action of delivering a visitor to the destination URL submitted by Advertiser.
“Client Console” means the Program's online user interface available at https://ads.resilion.net and related web pages that allow Advertiser to manage Ads and Campaigns on the Resilion Network.
Advertiser is responsible for controlling access to its Resilion account and must pay any fees or charges incurred as a result of such access. Resilion assumes no liability for any erroneous information reported in the Client Console.
4. Advertiser’s Use of the Program
a. Advertiser shall provide Resilion with true, complete, current, and accurate information. By submitting Advertiser Data, Advertiser grants Resilion a non-exclusive, royalty-free, worldwide license to use, reproduce, publish, distribute, reformat, repackage, bundle, cache, index, and transmit such material, including any trademarks, service marks or trade names contained therein for the sole purpose of delivering Visits to Advertiser though the Program.
b. Direct Navigations to Advertiser selected URLs and placement of Advertiser sponsored listings are determined by Advertiser Data and may vary across the Resilion Network. Advertiser acknowledges and agrees that Resilion has no responsibility to review Advertiser Data or other content submitted, approved, and/or used by Advertiser in connection with the Program.
c. Resilion does not guarantee that Visits will originate from any particular service, application or domain of the Resilion Network, nor from a particular geographic area.
d. Advertiser shall not use the Program to promote any illegal item, product, or service or to engage in any illegal or fraudulent business practice in the United States or any other country.
5. Budgets, Calculation of Visits, Visit Validity, and Payment Terms
a. Advertiser may set budget limits and spend caps based on the budgeting options available in the Program. Within such limits and caps, Advertiser will be charged a cost per Visit. Advertiser may access daily reporting through the Client Console. Such reporting will include the number of Visits and the average cost per Visit charged.
b. Resilion’s calculations of the number of Visits shall be final and binding. Advertiser must submit any dispute concerning Visit calculations within sixty (60) days following the end of the month in which the Visit occurred by sending Resilion an email via the “Contact Us” link in the “Resources” section of the Client Console.
c. While Resilion takes certain steps to reduce the incidence of spam or invalid Visits, it cannot guarantee that all Visits charged to Advertiser were caused by bona fide Resilion Network users. As a result, Resilion disclaims any representation or warranty as to the validity of Visits for which Advertiser may be charged. Advertiser acknowledges and agrees that this provision is an essential element of the Agreement and, in its absence, the economic terms of this Agreement would be substantially different.
d. Resilion will invoice Advertiser on a monthly basis. Invoices are payable within thirty (30) days of receipt. If Advertiser fails to make payment within the designated time period, Advertiser may be subject to the maximum interest charge available at law, and shall pay the reasonable cost, including collection, court costs and attorneys’ fees, incurred by Resilion in collecting any amounts due. Resilion may, in addition to other remedies available to it for non-payment, immediately suspend Campaigns from the Resilion Network and/or terminate this Agreement and/or any ongoing insertion order.
e. Advertiser is responsible for all costs Advertiser incurs in connection with the use of the Program, including, without limitation, (i) expenses connected with the creation, updating, and management of its Campaigns; (ii) establishing, maintaining and updating Advertiser Data and the web pages of the destination URLs selected by Advertiser and (iii) any taxes, assessments, or other governmental fees incurred by Advertiser as a result of its use of the Program.
6. Cancellation and Termination
a. This Agreement commences when Advertiser opens a Resilion account and continues so long as Advertiser maintains such account. Campaigns may be cancelled at any time via the Client Console. Advertiser shall be responsible for paying for all Visits until all Campaigns have been effectively terminated.
b. Resilion may suspend or terminate any or all campaigns or Advertiser Data at any time for any reason, without liability.
7. Representations and Warranties of Advertiser. Advertiser represents and warrant at all times during the term of this Agreement that:
a. Advertiser has all necessary rights and authority to enter into this Agreement, to perform the acts required under the Agreement and grant the licenses granted in this Agreement, and Advertiser's execution of the Agreement performance of its obligations hereunder does not violate any agreement to which Advertiser is a party or by which it is otherwise bound;
b. Advertiser possesses all necessary authorizations, approvals, consents, licenses, permits, certificates, permissions and other rights to use the Advertiser Data in connection with the Program and offer the goods and services promoted through the program; and
c. All Advertiser Data, web pages of the destination URLs and the products and/or services promoted by Advertiser using the Program do not and will not: (i) infringe or violate the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party; (ii) be false, misrepresentative, libelous, defamatory, obscene, or otherwise inappropriate; (iii) violate any applicable law or regulation; (iv) advertise any unlawful product or service or promote the unlawful sale of any product or service; (v) contain or trigger the installation of any spyware or adware; (vi) contain any virus, Trojan or other harmful code; or (vii) trigger the installation of any application without adequate user consent mechanisms or reset a user’s homepage or browser settings in any way or mislead users into downloading software in any way.
a. Advertiser shall indemnify and hold harmless Resilion, its agents, affiliates and licensors, and any of their respective officers, directors, partners, licensors, consultants, contractors, agents, attorneys, employees, and Resilion Network partners for any third party claim or liability arising out of or relating to with (a) any breach of any representation, warranty, or obligation in this Agreement; and (b) Advertiser Data, web pages operated by Advertisers that receive Visits, as well as the products and/or services promoted therein.
b. Resilion shall indemnify and hold harmless Advertiser for any third party claim or liability arising out of or relating to any breach of any representation, warranty, or obligation in this Agreement.
c. The indemnifications in this Section 12 include, without limitation, the out of pocket cost of defending any claims including reasonable attorneys’ fees and the payment of any settlements and damages. The party seeking indemnification must promptly notify the other party of the claim subject to indemnification.
9. Disclaimer and Limitation of Liability. Except for the warranties set forth expressly in this agreement, each party disclaims all warranties including, but not limited to, warranties for non-infringement, merchantability, and fitness for any purpose. Except for indemnification obligations set forth herein, neither party will be liable for consequential, special, indirect, punitive, or other damages arising out of or related to the Program or this Agreement, even if such damages are forseeable and whether or not the other party has been advised of the possibility of such damages. Resilion disclaims any representation or warranty regarding (i) the location and/or prominence of Advertiser’s sponsored links on the Resilion Network, and any website, service, domain, or client application of the Resilion Network or any links therefrom. Resilion shall not be liable for any unavailability or inoperability of the Internet or any computer network, or for any corruption or loss of, or unauthorized access to, any information from whatever source.
10. Choice of Law and Forum. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without reference to conflicts of laws principles. Any dispute arising out of or relating to this Agreement will be commenced in the state or federal courts sitting in San Francisco, California, and Advertiser and Resilion expressly agree to submit to the exclusive jurisdiction of such courts. Advertiser agrees and acknowledges that it is subject to the personal jurisdiction of the aforementioned courts and agrees not to contest the convenience of those courts.
11. Notices. Resilion may serve general notices to Advertisers on the Client Console or individual notices through electronic mail sent to the email address provided by Advertiser, for all purposes including information on the release of new Program features and targeting options, and corresponding updates of this Agreement and any of the documents referenced herein. Notices of a legal nature by Advertiser to Resilion shall be in writing and delivered by personal service, confirmed fax, express courier or certified mail, return receipt requested, to Resilion at the following address: Resilion, Inc., Attention: Legal Department, 426 17th Street, Suite 600, Oakland, CA. 94612.
12. Electronic Signatures. Advertiser hereby agrees to the use of electronic signatures, contracts, orders, and other records and to electronic delivery of notices, policies and records of transactions initiated or completed through the services provided by Resilion. Further, Advertiser hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
a. Survival of Terms. Sections 1, 7 through 13, together with any outstanding payment obligation, shall survive the termination or cancellation of the Agreement.
b. Entire Agreement. This Agreement, together with any executed insertion order(s) between Advertiser and Resilion, is a fully-integrated agreement concerning the Program and supersedes all previous and contemporaneous agreements, proposals and communications, whether written or oral, between Advertiser and Resilion regarding the Program. Unless expressly incorporated by reference into this Agreement, any statements on Resilion’s websites relating to the Program do not form part of this Agreement.
c. No Waiver. Except as provided herein, no failure of either party to enforce any of its rights under the Agreement will act as a waiver of such rights.
d. Severability. If one or more provisions of the Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from the Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms.
e. Interpretation. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement.
f. Force Majeure. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under the Agreement if such delay or default is caused by conditions of Force Majeure, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes.
g. No Joint Venture. Each party shall each act as independent contractors. Nothing in the Agreement shall be deemed to create or be construed as creating a joint venture or partnership between the parties.
h. Assignment. Neither party may assign this Agreement, in whole or in part, without the other party's written consent; provided, however, that either party may assign this Agreement without such consent in connection with any merger, consolidation, any sale of all or substantially all of such party’s assets or any other transaction in which more than fifty percent (50%) of such party’s voting securities are transferred, subject to all of the terms of this Agreement. This Agreement shall be binding on any such assignee.