These terms and conditions (“Terms and Conditions”) govern all Orders (as defined in Section 3) for digital advertising placements fulfilled by FS-ISAC, Inc. (“FS-ISAC”). Each Order and these terms and conditions together constitute the agreement (“Agreement”) between the advertiser identified on the Order (“Advertiser”) and FS-ISAC. The terms and conditions apply to all Orders entered into after the date of execution of the Order (the “Effective Date”), and may be updated from time to time.2. TERM
The Term of this Agreement shall be as set forth in the Order, either expressly as “the Term” or as the timeframe of the advertising campaign.
Advertiser has contracted with FS-ISAC for the online publication of advertising as described in an order to which these Terms and Conditions are attached (the “Order”). All terms and conditions of this Agreement shall apply to every online publication of an advertisement on Advertiser’s behalf (each, an “Ad”). No terms of an Order or other communication from Advertiser that contradict or are inconsistent with the terms and conditions of this Agreement shall be binding on FSISAC, unless in writing and signed by both parties.
4. REPRESENTATIONS AND WARRANTIES; COMPLIANCE WITH LAWS
Advertiser represents, warrants and covenants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder,(b) its performance of this Agreement will not violate any contracts with third parties, (c) all materials and digital files submitted to FS-ISAC, and the web pages, attachments or other materials linked to such materials (“Ad Material”) do not contain any computer viruses or other damaging code, (d) all Ad Material and campaigns do not violate any rights of any third parties, including but not limited to copyright, trademark, patents, trade secrets, right to privacy, right of publicity (“Intellectual Property Rights”), and civil rights, and (e) it is familiar with, and all Ad Materials and campaigns comply with, all applicable laws, regulations, and FTC and industry guidelines, including but not limited to: local, state and federal laws regarding political advertising and fair housing, and Native Advertising: A Guide for Business at https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses (December 2015). By way of emphasis, Advertiser represents and warrants that it has obtained all necessary consents and releases before submitting Ad Material, and all statements and direct and indirect claims made in each Ad are accurate and true and supported by competent and reliable substantiation.
Advertiser agrees not to use or permit use of the Advertising, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Ad Materials, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters, or (e) otherwise violate applicable Laws.
5. AD PREPARATION AND ACCEPTANCE
5.1 NO LEGAL REVIEW
FS-ISAC does not assume any obligations to perform legal review of Ads
5.2 AD PREPARATION
Advertiser is solely responsible for preparing its Ads for publication. Advertiser remains solely responsible for the contents of the Ad(s) and for compliance with any laws regulating such advertising as represented by Advertiser in Section 4 above.
5.3 AD ACCEPTANCE
Submission of an Ad to FS-ISAC does not constitute a commitment by FS-ISAC to publish or distribute the Ad. FS-ISAC accepts an Ad only by publishing such Ad.
5.4 AD MATERIAL DELIVERY
Advertiser shall be responsible for timely providing to FS-ISAC all Ad Material necessary for the online publication of the Ads, including all necessary artwork and/or digital files, the timing and formats of which may be more specifically set forth in the Order. FS-ISAC will not be responsible for Ad Material that is not properly formatted or displayed or that cannot be accessed or viewed because it was not received by FS-ISAC in the proper form, in a timely manner, or in an acceptable technical quality for mobile or online publication. FS-ISAC will make final technical specifications electronically accessible to Advertiser in the Order. FS-ISAC may charge the Advertiser on the Order start date regardless of whether the Ad Materials are received by FS-ISAC in time for publication.
Ad Materials that do not conform to the Order may result in a higher price. See Section 7.1 on Liability for Errors / Omissions / Cancellations.
FS-ISAC prohibits, and may postpone, cancel or otherwise return, any Ad Material that violates its advertising standards, including but not limited to advertising that violates applicable laws, promotes pornography, illegal goods, illegal drugs, illegal drug paraphernalia, pirated computer programs, and instructions on how to assemble or otherwise make bombs, grenades or other weapons.
5.5 REJECTION AND ALTERATION OF ADS
To ensure the integrity of our website and blog and for the benefit of our members, viewers, and advertisers, FS-ISAC reserves the right to revise, reclassify, edit or reject any Ad Material or any portion thereof at any time, for any reason, or no reason. FS-ISAC at all times reserves the right to refuse to publish any Ad text or other content for any reason and regardless of whether any such Ad Material was previously accepted by FS-ISAC. FS-ISAC reserves the right to alter any Ad Material in order for the material to conform to FS-ISAC’s current mechanical or technical specifications. FS-ISAC shall notify Advertiser when it rejects Ad Materials due to unsatisfactory technical quality, inappropriate content, or any other reason.
5.6 REPLACEMENT OR REMOVAL OF ADVERTISING
Once submitted, Advertiser may replace or cancel creative copy for Ads only with 48 hours prior written notice to FS-ISAC.
5.7 DIGITAL OWNERSHIP
As between the parties, FS-ISAC owns all right, title and interest in and to all content on FS-ISAC website (except for Ad Materials) and all other content, html and code. Nothing in this Agreement or otherwise precludes FS-ISAC from using any code, design, idea, concept or material used in connection with this Agreement on behalf of itself or any third party. FSISAC owns all right, title and interest in and to any data about users of its website. Advertiser authorizes FS-ISAC to bring any claims FS-ISAC may in its reasonable discretion choose to pursue to prevent third party use of the content or data contained in any Advertising, without Advertiser’s consent.
5.8 PROHIBITION AGAINST USAGE OF DIGITAL COLLECTED DATA
Advertiser is expressly prohibited from using data regarding a campaign for retargeting a User (FS-ISAC website visitor) or appending data to a non-public profile regarding a user.
6. FINANCIAL TERMS
All advertising rates and other fees charged to Advertiser by FS-ISAC will be set forth in the Order.
6.2 PAYMENTS AND DISPUTES
Advertiser shall pay all Invoices within 15 days of Invoice date or as otherwise stated on the Invoice. “Invoice” means any electronic or paper request for payment regardless of the title of the document. Invoices may be titled “statement” or “bill.”
6.2.2 INVOICE DISPUTES
Advertiser waives any dispute regarding any item included in an Invoice unless notice and amount of such dispute is provided to FS-ISAC within thirty (30) days of the Invoice date.
6.2.3 LATE PAYMENT AND COLLECTIONS
Except for invoiced payments that Advertiser has successfully disputed, Advertiser shall be responsible for all costs incurred by FS-ISAC in connection with the collection of any amounts owing hereunder, including without limitation, collection fees, court costs and reasonable attorneys’ fees.
6.3 RATE CHANGES
FS-ISAC shall have the right to revise the advertising rates set forth in the Order at any time upon notice to Advertiser of such rates. Advertiser may terminate this Agreement on the date the new rates become effective by giving written notice within 30 days of such termination. In the event of such termination, Advertiser shall be liable for Ads published prior to such termination at the Current Agreement Rate. “Current Agreement Rate” is defined as the billing rate in effect at the time of placement.
6.4 NO SET-OFF
Unless otherwise agreed to by the parties, Advertiser may not set off against amounts due to FS-ISAC under this Agreement any amounts owed by FS-ISAC to Advertiser.
All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Advertiser pursuant to this Agreement. Advertiser shall be responsible for all such charges, costs and taxes and all amounts paid and payable by FS-ISAC in discharge of the foregoing taxes. This provision shall survive the termination or expiration of this Agreement.
7. LIABILITY FOR ERRORS/OMISSIONS/CANCELLATIONS
It is Advertiser’s responsibility to check for errors in its Ads before and after publication. Advertiser shall check the first appearance of Ads for correction and FS-ISAC shall not be liable for any incorrect publication or distribution. FS-ISAC is not responsible for errors involving Orders, cancellations or corrections given orally. Written or facsimile confirmation of Orders, cancellations or corrections must be received prior to FS-ISAC’s cancellation deadline. FS-ISAC will publish Ads and bill Advertiser for all Orders that are not canceled prior to the deadline.
If FS-ISAC is unable to display any Ad for any reason, FS-ISAC shall at its option either (a) provide substitute advertising of comparable value, or (b) refund to Advertiser a the fee Advertiser has paid to FS-ISAC with respect to such Ad.
Advertiser shall defend, indemnify and hold harmless FS-ISAC and its affiliates, subsidiaries, and their respective directors, officers, principals, managers, members, partners, shareholders, employees, and controlling persons and their affiliates (FS-ISAC and each such person being an “Indemnified Party”), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, demands, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification (collectively, “Losses”), arising out of or resulting from its breach of this Agreement; negligence or willful act or omission of Advertiser or its personnel or affiliates in connection with its performance of its obligations under this Agreement; the content of, or representations made in any Ad or any website linked to from an Ad; and any other claims of any nature arising from or attributable to the publication of any Ad.
9. LIMITATION OF LIABILITY
Except with respect to Advertiser’s indemnification and confidentiality obligations, in no event will either party be liable to the other for any consequential, incidental, indirect, exemplary, special or punitive damages whatsoever (including damages for loss of use, revenue or profit, business interruption and loss of information), whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages. In no event shall FS-ISAC be liable to Advertiser for any amount greater than the amount paid by Advertiser to FS-ISAC under this Agreement.
FS-ISAC EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING ITS SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTY REGARDING (A) THE NUMBER OF PERSONS WHO WILL ACCESS ANY ONLINE ADVERTISEMENT, ON THE FS-ISAC WEBSITE; (B) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM ANY ADVERTISING; AND (C) THE SPEED, ACCESSIBILITY, OPERATION OR FUNCTIONALITY OF ANY ADVERTISING TO BE DISPLAYED ONLINE.
10. ADVERTISER REPRESENTED BY AGENCY
Agency’s representative represents and warrants that he or she has all necessary authority to enter into this Agreement on behalf of Agency. Agency represents and warrants that it has all necessary authority to enter into this Agreement on behalf of Advertiser.
Any obligation of Advertiser pursuant to this Agreement may be satisfied by an advertising agency which has been duly appointed by Advertiser to act on Advertiser’s behalf (the “Agency”) and shall be deemed to be an obligation of Advertiser and the Agency. Additionally, any right of Advertiser pursuant to this Agreement may be exercised by the Agency, and shall be deemed to be a right of Advertiser and the Agency. Collectively, the Advertiser and Agency will be referred to as “Advertiser.” Each shall be jointly and severally liable for the obligations of the other.
Agency shall be liable for payment for all advertising placed and invoiced by FS-ISAC regardless of any contrary language in any past, contemporaneous or future writing, regardless of whether it receives payment from Advertiser. Agency will make available to FS-ISAC the name of the Advertiser and any beneficial owners of the Advertiser, the relationship between Agency and Advertiser and of Agency’s authorization to act on Advertiser’s behalf in connection with this Agreement. In addition, upon the request of FS-ISAC, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the Order.
11. LICENSE TO AD MATERIALS
Advertiser grants FS-ISAC a non-exclusive, perpetual, irrevocable and worldwide license to copy, store, display, print and distribute any and all Ad Materials provided by Advertiser or its agents, including but not limited to photographs, artwork, text and graphics, in any media, presently known or unknown, including but not limited to FS-ISAC’s electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media.
FS-ISAC has no obligation to return any material (including Ad Material) submitted to FS-ISAC by or on behalf of Advertiser to Advertiser or any other party, and FS-ISAC shall have no liability for its loss or destruction.
FS-ISAC may disclose or make available to the Advertiser (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property Rights, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement including but not limited to the pricing and rates, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). The Advertiser shall from receipt/disclosure of such Confidential Information: (x) protect and safeguard the confidentiality of FS-ISAC’s Confidential Information with at least the same degree of care as the Advertiser would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use FS-ISAC’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Advertiser’s representatives who need to know the Confidential Information to assist the Advertiser, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Advertiser shall be responsible for any breach of this Section caused by any of its representatives or agents. At any time during or after the Term, at FS-ISAC’s written request, the Advertiser and its representatives shall promptly return/destroy all Confidential Information and copies thereof that it has received under this Agreement.
FS-ISAC shall have the right to terminate this Agreement at any time, with or without notice to Advertiser. Advertiser shall have the right to terminate this Agreement at any time upon [thirty (30) days] written notice to FS-ISAC.
14. OTHER TERMS
14.1 FORCE MAJEURE
Except for payment obligations, neither party will be liable for failure to perform any obligation required under this Agreement when such failure is due to fire, flood, labor disputes or strikes, unavoidable accident, government action, legal restrictions, electronic or electrical interference, telecommunications difficulties, system failure, technical failure, equipment breakdown, failure of any third party system or product, or any other cause beyond the control of that party.
Advertiser may not resell, assign, or transfer any of its rights or obligations under this Agreement without the prior written consent of FS-ISAC. All terms and conditions in this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted transferees, successors, and assigns.
If any provision hereof is held invalid or unenforceable, such invalidity shall not affect the validity or operation of any other provision.
14.4 RELATIONSHIP OF PARTIES
Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. FS-ISAC is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third-party.
14.5 GOVERNING LAW & VENUE
This Agreement, including all Order documents, and all matters arising out of or relating to this Agreement, is governed by, and construed in accordance with the substantive law (excluding choice of law provisions) of the Commonwealth of Virginia. Both parties hereby consent to exclusive jurisdiction and venue of the state and federal courts in the Commonwealth of Virginia.
14.6 COMPLETE AGREEMENT, MODIFICATION, AND WAIVER
This Agreement constitutes the final, complete, and exclusive statement of the terms of the Agreement between the parties with respect to all advertising and supersedes all prior and contemporaneous understandings or agreements of the parties, unless otherwise noted in this Agreement. This Agreement may be modified only by a written document signed by an authorized representative of both parties. Waiver of any of the terms of this Agreement by FS-ISAC in any instance shall not prevent FS-ISAC from subsequently enforcing any provision of this Agreement in accordance with its terms.
Sections 4 (Representations and Warranties; Compliance with Laws), 5.7 (Digital Ownership), 5.8(Prohibition Against Usage of Digital Collected Data), 6.2 (Payments and Disputes), 6.5 (Taxes), 7 (Liability for Errors / Omissions / Cancellations), 8 (Indemnification), 9 (Limitation of Liability), 10 (Advertiser Represented by Agency), 11 (License to Ad Materials), 12 (Confidentiality), 13 (Termination) and 14 (Other Terms) shall survive termination or expiration of this Agreement.