Insertion Order Terms and Conditions, November 26, 2012 and earlier
The following terms and conditions (“Standard Terms”) shall be deemed to be incorporated into any attached Insertion Order or into any online advertising order form (in each case, an “IO”). Any right or obligation of Opera Software ASA under the IO or these Standard Terms may be exercised, undertaken and/or enforced by its wholly owned subsidiary and advertising technology provider AdMarvel, Inc. (collectively referred to herein as "Opera"). These Standard Terms shall govern any IO submitted by the advertiser or its agency identified on the face of the IO (collectively, "Advertiser"), the advertising materials provided by Advertiser (“Ad Media”), as well as any delivery of advertising thereunder. The IO, the Standard Terms and the Specification (defined below) constitute a binding contract between Advertiser and Opera Software ASA and are collectively referred to herein as the “Agreement.” Except as otherwise expressly provided in the IO, the IO is non-cancelable by Advertiser.
- Terms of Payment. Advertiser may be required to submit a completed credit application to determine eligibility for credit hereunder. If no credit application is submitted or the request for credit is denied by Opera, the IO must be paid in advance of the start date indicated on the IO. If Opera approves credit, Advertiser will be invoiced, and shall make payment, as set forth in the IO. In the event that additional commercial elements are included in the “Additional Compensation” section of the IO, within twenty (20) days after each calendar month, Company shall provide Opera with a report by email sent to firstname.lastname@example.org that provides the necessary information for Opera to accurately calculate such compensation. In the event Advertiser fails to make timely payment or otherwise breaches the Agreement: (i) Advertiser shall bear interest at the rate of one percent (1%) per month (or the highest rate permitted by law, if less; and (ii) Advertiser will be responsible for all reasonable expense (including attorneys’ fees) incurred by Opera in collecting such amounts. Opera reserves the right to suspend performance of its obligations under the Agreement (or under any other advertising agreement with Advertiser) in the event Advertiser fails to make timely payment hereunder or otherwise breaches the Agreement or under any other agreement with Opera.
- Provision of Ad Media. Advertiser will provide all Ad Media for the advertisement in accordance with Opera’s policies and specifications in effect from time to time (the “Specifications”), including (without limitation) the manner of transmission to Opera and the lead-time prior to publication of the advertisement, and the requirements set forth in Sections 8 and 9 below. Opera shall not be required to publish any Ad Media that is not received in accordance with such Specifications and reserves the right to charge Advertiser, at the rate specified in the IO, for inventory held by Opera pending receipt of acceptable Ad Media from Advertiser which is past due. Advertiser hereby grants to Opera a non-exclusive, royalty-free, worldwide, fully paid license to store, use, reproduce and display the Ad Media (and the contents, trademarks and brand features contained therein) in accordance herewith. Where one or more features of an Opera Browser (bookmarks, start page links, speed dials, etc.) are listed in the Targeting specified in the IO, the following shall also apply: (i) Advertiser shall provide Opera with a separate, unique link for each agreed Opera Browser feature listed in the IO (“Link”). (ii) Advertiser shall ensure that the Links are functional and lead to the Advertiser’s web property. (iii) Advertiser shall ensure that Advertiser’s web property is fully compatible with the identified Opera Browser. (iv) Opera may use a tracking URL within the Opera Browser to direct traffic to the Advertiser supplied Link(s). (v) Opera reserves the right to change its implementation of any Opera Browser feature at any time and for any reason.
- Third Party Ad Serving. If Opera has approved the use by Advertiser of a third party server (“Third Party Server”) in connection with this IO, the following provisions shall also apply: (a) The Advertiser shall post each advertisement to a staging area and shall notify Opera of such posting at least two (2) business days prior to the date the Third Party Server is scheduled to serve such advertisement to an Opera property. Such advertisement shall be reviewed by Opera and must be approved in writing by Opera before it can be served by Third Party Server. (b) The Advertiser shall post all scheduling changes, new target URLs, new HTML specifications, new graphics and all other new or revised advertisements (“Revisions”) to a staging area and shall notify Opera of such posting at least two (2) business days prior to the date Advertiser wishes such Revisions to take effect. Revisions shall not be implemented until approved by Opera in writing, which approval shall be at Opera’s sole discretion. (c) If Advertiser discovers that Advertiser or Third Party Server has served, or caused to be served, an advertisement to an Opera property in violation of this Agreement, Advertiser must immediately provide notice to Opera of the violation (along with a written explanation) and remove the advertisement from its placement or rotation on the Opera properties . Nothing in this Section shall limit any of Opera’s rights or remedies in the event of such breach. (d) In the event Opera exercises its right to cancel an advertisement in accordance with Section 4 below, Opera shall notify Advertiser in writing at the address, email address or fax number set forth on the IO. The Advertiser must cause the advertisement to be removed from the Opera properties and from its advertising rotation no later than two (2) hours after written notification from Opera. Notice shall be deemed to have been received by Advertiser three (3) days after deposit in the U.S. mail or, in the case of email or facsimile transmission, within one (1) hour of transmission. (e) If Advertiser or Third Party Server serves the advertisements, neither Advertiser nor Third Party Server may restrict the number of times an advertisement shall be served to a user in any given period.
- Right to Reject Advertisement. Opera reserves the right to reject or cancel any advertisement (or any element thereof), IO, campaign, URL or other link, space reservation or position commitment, at any time, for any reason whatsoever (including belief by Opera that the relevant advertisement or element thereof, URL, link, or other activity may subject Opera to criminal or civil liability or is adverse to Opera’s business interests). The fact that Opera has not rejected an advertisement shall not in any way reduce, limit or otherwise affect Advertiser’s responsibility and obligations under this Agreement.
- Positioning. Except as otherwise expressly provided in the IO, positioning of advertisements within the Opera properties or on any page thereof is at the sole discretion of Opera. Opera may, at its sole discretion, modify or remove any portion of the Opera properties (and use commercially reasonable efforts to substitute with similar inventory).
- Delivery; Usage Statistics. Unless specified in the IO, Opera makes no guarantees with respect to usage statistics, levels of impressions, click-throughs, leads generated or actions taken (including without limitations, completed program downloads) for any advertisement. Specifically with respect to program downloads, Advertiser acknowledges that Opera measures only initiated downloads, and cannot measure completed downloads. Possible reasons for differences between reported initiated and reported completed downloads include, but are not limited to: (a) mobile device connection failures, (b) inconsistency in download directories among mobile devices, and (c) failures of applications to operate on certain mobile devices. Advertiser acknowledges that delivery statistics provided by Opera are the definitive and binding measurements of Opera’s performance on any delivery obligations provided in the IO. No other measurements or usage statistics (including those of Advertiser or a third party ad server) shall be accepted by Opera or have bearing on the Agreement.
- Advertising Standards. All advertising content must comply with any applicable industry standards, including but not limited to the Mobile Marketing Association’s Best Practices and CTIA’s Wireless Content Standards, as well as the advertising rules, regulations and standards promulgated by regulators in the territory in which the advertisements are displayed (such as, for example, the Federal Trade Commission, the Distilled Spirits Council of the United States, and the Child Advertising Review Unit). Advertising content shall not contain any material that is misleading, inaccurate, or that makes fraudulent or unfair competitive claims or that makes insufficiently supported claims or claims that distort the true meaning or practical application of statements made by the Advertiser. Additionally, advertising may not contain or promote material that contains malware of any kind, including without limitation viruses, worms, Trojans, spyware, or adware, nor material that is patently offensive or which violates any provision of applicable law and regulations (including but not limited to, libel, copyright, trademark, right of privacy, etc.). Advertising must comply with standards of decency and good taste. Opera will decide, in its sole discretion, whether the content, material or services provided in or through the Advertiser complies with these standards. Opera may change these guidelines at any time upon prior written notice to Advertiser. Advertiser agrees to cooperate in promptly editing, changing or stopping, any advertising that Opera in good faith believes to be in violation of these advertising standards.
- Advertiser Representations; Indemnification. Advertiser represents, warrants and covenants that it holds the necessary rights to permit the use of Advertiser’s advertisement content by Opera and that none of the Ad Media and materials provided by Advertiser will: (a) infringe on any third party’s copyright, patent, trademark, trade secret, right of privacy or other proprietary rights or intellectual property rights; (b) violate any law, statute, ordinance or regulation, including without limitation the laws and regulations governing export control; (c) be defamatory or trade libelous; (d) be pornographic or obscene; or (e) contain viruses, Trojan horses, worms, time bombs, or other similar harmful or deleterious programming routines. Advertiser agrees, at its own expense, to indemnify, defend and hold harmless Opera, including AdMarvel, and their employees, representatives, agents and affiliates, against any and all expenses, losses or liability of any kind (including reasonable attorneys’ fees and costs) incurred in connection with any claims, administrative proceedings or criminal investigations of any kind arising out of the breach of any of Advertiser’s representations, warranties or covenants hereunder (including without limitation as set forth in Sections 3, 7, 8 and this Section 9 ) and/or the publication of Advertiser’s advertisements and/or any material, product or service to which users can link through such advertisements (including without limitation, any claim of trademark or copyright infringement, defamation, breach of confidentiality, privacy violation, false or deceptive advertising or sales practices).
- Disclaimer of Warranties. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL SERVICES PROVIDED BY OPERA ARE “AS IS” AND OPERA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING OPERA’S SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
- Limitation of Liability. IN THE EVENT OPERA FAILS TO PUBLISH AN ADVERTISEMENT IN ACCORDANCE WITH THE IO IN ANY RESPECT, THE SOLE LIABILITY OF OPERA TO ADVERTISER AND ADVERTISER’S SOLE REMEDY SHALL BE LIMITED TO, AT OPERA’S SOLE DISCRETION, A PRO RATA REFUND OF THE ADVERTISING FEE REPRESENTING UNDELIVERED IMPRESSIONS AND/OR INTEGRATION, PLACEMENT OF THE ADVERTISEMENT AT A LATER TIME IN A COMPARABLE POSITION, OR EXTENSION OF THE TERM OF THE IO UNTIL THE CONTRACTED IMPRESSIONS AND/OR INTEGRATION ARE DELIVERED. IN NO EVENT SHALL OPERA BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO THE AGREEMENT OR PUBLICATION OF ANY ADVERTISEMENTS, EVEN IF OPERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, OPERA SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY GOVERNMENTAL ACTION, FIRE, FLOOD, INSURRECTION, EARTHQUAKE, POWER FAILURE, RIOT, EXPLOSION, EMBARGO, STRIKES WHETHER LEGAL OR ILLEGAL, LABOR OR MATERIAL SHORTAGE, TRANSPORTATION INTERRUPTION OF ANY KIND, WORK SLOWDOWN OR ANY OTHER CONDITION BEYOND THE REASONABLE CONTROL OF OPERA.
- Construction. No conditions other than those set forth in the IO or these Standard Terms shall be binding on Opera unless expressly agreed in writing by Opera. In the event of any inconsistency between the IO and these Standard Terms, these Standard Terms shall control.
- Miscellaneous. Advertiser may not resell, assign or transfer any of its rights hereunder, and any attempt to resell, assign or transfer such rights shall result in immediate termination of this Agreement. This Agreement; (a) shall be governed by and construed in accordance with, the laws of the State of California, USA, without giving effect to principles of conflicts of law; (b) except as otherwise set forth in the IO, may be amended only by a written agreement executed by an authorized representative of each party; and (c) constitutes 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. Advertiser shall make no public announcement regarding the existence or content of the IO without Opera’s written approval, which may be withheld at Opera’s sole discretion. Both parties consent to the exclusive jurisdiction of the courts located in Santa Clara County, California with respect to any legal proceeding arising in connection with this Agreement.
- General. In the event that any provision of this Agreement shall be held by a court of law or other government agency to be void, voidable, or unenforceable, the remaining portions hereof shall remain in full force and effect. Advertiser agrees that it and its employees shall not disclose to, and shall prevent disclosure to, any third party, the terms of and performance under the Agreement. All outstanding payment obligations, and Sections 1, 6, and 9 through 14 and such other provisions, which by their nature should survive, will survive any termination or expiration of this Agreement. This Agreement may be executed in counterparts, via telefacsimile or exchange of PDF or similar electronic document format, each of which shall constitute an original but all of which taken together shall constitute one and the same agreement. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. All rights and remedies hereunder are cumulative.