Advertiser Terms and Conditions

These Admira™ Advertising Program Terms ("Terms") are entered into by, as applicable, the customer signing these Terms or any document that references these Terms or that accepts these Terms electronically ("Advertiser") and Navic Systems, Inc. ("Navic"). These Terms govern Advertiser's participation in and use of the Admira™ advertising program(s) (the "Program") and, as applicable, any insertion orders, advertisement or other media buys or service agreements (each, a "Media Buy") executed by and between the parties (electronically or otherwise) and/or Advertiser's online management of any advertising campaigns. These Terms and any applicable Media Buy are collectively referred to as the "Agreement." Navic and Advertiser hereby agree and acknowledge as follows:

  1. Program use is subject to all applicable policies of Navic and any third party partner (each, a "Partner") and any Navic and/or Partner ad specification requirements (collectively, the "Policies"). The Policies may be modified at any time. Without limiting Sections 6 or 10 hereof, Navic may, but is not obligated to, modify advertisements to comply with any Policies.
  2. Advertiser shall purchase media offered by the Program exclusively using the Admira™ online advertising console (the "Console") and Advertiser′s execution of such Media Buy shall conclusively be its agreement to purchase conforming advertising inventory from Navic. Advertiser shall direct only to Navic communications regarding Advertiser advertisements on any Admira Inventory. Advertiser is solely responsible for: (a) determining and selecting through the Admira Console all advertisement targeting rules, impression criteria or other insertion criteria or matching options (collectively "Targeting Criteria") applicable to each Media Buy, (b) determining and selecting through the Console ad buy restrictions, the advertising budget, targeted impressions, and any other financial restrictions or parameters for each Media Buy (collectively, the "Media Buy Parameters"), (c) all ad content, ad information, and any associated URLs appearing in the ad, whether generated by or for Advertiser (collectively, the "Creative"), and (d) all advertised services and products (collectively, "Advertised Services"). Advertiser shall protect any Advertiser passwords to the Console and takes full responsibility for Advertiser's own, and third party, use of any Advertiser accounts. Advertiser understands and agrees that advertisements of Advertiser may be placed on any television or other media advertising inventory of Navic ("Navic Inventory") or a Partner within which Navic inserts advertisements ("Partner Inventory" and, collectively with the Navic Inventory, "Admira Inventory"), subject to the Targeting Options and Media Buy Parameters selected by Advertiser. Advertiser authorizes and consents to all such placements. Advertiser agrees that all placements of Advertiser's advertisements shall conclusively be deemed to have been approved by Advertiser unless Advertiser produces contemporaneous documentary evidence of its effective Media Buy showing that Advertiser disapproved such placements in the manner specified by Navic. With respect to all other advertising, Advertiser must provide Navic with all relevant Creative by the due date set forth in the Policies or as otherwise communicated by Navic. Advertiser acknowledges that any modifications to the Targeting Options, Media Buy Parameters or Creative for any Media Buy may take up to twenty-four (24) hours to be processed by Admira™ (the "Change Period") and that such modified Media Buy may not be effective in governing the specific placement of advertisements, the financial terms thereof or any other restrictions or parameters applicable to an active Media Buy during such Change Period and Advertiser hereby consents to the continued execution of the prior active Media Buy during such Change Period. Navic or any of its Partners may reject or remove any advertisement or Media Buy for any or no reason.
  3. Advertiser shall be responsible for all charges up to the amount of the budget and/or the specific spot rates or other buying metric set forth in each Media Buy, or as otherwise agreed in writing between Navic and the Advertiser, and shall pay all charges in U.S. Dollars. Advertiser acknowledges that all estimated impressions associated with any Media Buy are estimates only, and, without limiting the generality of the foregoing, Advertiser shall have no recourse if the actual impressions purchased in accordance with the Media Buy Parameters of any Media Buy are different than had been previously forecasted or any Media Buy takes longer to execute the budget or generate the budgeted impressions than had been previously forecasted. Unless agreed to by the parties in writing, Advertiser shall pay all charges in accordance with the payment terms in the applicable Media Buy, which unless otherwise agreed by the parties in writing shall be within thirty (30) days of the execution of the applicable Media Buy. Late payments bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). Charges are exclusive of taxes. Advertiser is responsible for paying (y) all taxes, government charges, and (z) reasonable expenses and attorneys fees Navic incurs in collecting late amounts. To the fullest extent permitted by law, Advertiser waives all claims relating to charges (including without limitation any claims for charges based on suspected invalid impressions or clicks) unless claimed within sixty (60) days after the charge. Charges are solely based on Navic's measurements of the viewership (and impression counts) for the applicable media on which Advertiser′s advertising is placed. Advertiser acknowledges that based on the unavailability of digital settop converter technology, measurement technology and or other required technology in certain market segments, the forecasting and measurement of impression counts for viewers in such market segments may be based on the extrapolation of actual impression counts and settop viewing data from other market segments metered by Admira or other Navic technology and other relevant data sources. By its participation in the Program, Advertiser agrees in all circumstances that any such extrapolated impressions shall count towards impressions purchased or budgeted through an applicable Media Buy as if they were actual measured impressions. Please contact Navic for further information on its extrapolation methodologies. To the fullest extent permitted by law, refunds (if any) based on invalid or suspect impression counts are at the discretion of Navic and only in the form of advertising credit for future placement within Admira Inventory. Nothing in these Terms or in any Media Buy may obligate Navic to extend credit to any party. Advertiser acknowledges and agrees that any credit card and related billing and payment information that Advertiser provides to Navic may be shared by Navic with companies who work on Navic's behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to Navic and servicing Advertiser's account. Navic may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. Navic shall not be liable for any use or disclosure of such information by such third parties.
  4. Advertiser represents and warrants that (a) it is authorized to act on behalf of and has bound to this Agreement any third party for which Advertiser advertises (a "Principal"), (b) as between Principal and Advertiser, the Principal owns any rights to Program information in connection with those advertisements, and (c) Advertiser shall not disclose Principal's Program information to any other party without Principal's consent.
  5. Advertiser may cancel any Media Buy or related advertising online through the Console if online cancellation functionality is available, or, if not available, with prior written notice to Navic, including without limitation electronic mail. The cancellation of any Media Buy or related advertising may be subject to the Change Period, any applicable Program policies or Navic's ability to re-schedule any reserved Admira Inventory or cancel advertisements already in production. Cancelled advertisements may be placed despite cancellation if cancellation of those advertisements occurs during the Change Period in which case Advertiser must pay for those advertisements. Navic may cancel immediately any Media Buy, any of its Programs, or these Terms at any time with notice, in which case Advertiser will be responsible for any advertisements already run. Sections 1, 2, 3, 4, 5, 6 (other than the fifth sentence thereof), 7 (other than the second sentence thereof), 8, 9, 10, and 11 will survive any expiration or termination of this Agreement.
  6. Advertiser shall not, and shall not authorize any party to: (a) generate automated, fraudulent or otherwise invalid impressions, inquiries, conversions, clicks or other actions or (b) advertise anything illegal or engage in any illegal or fraudulent business practice. Advertiser represents, warrants and covenants to Navic that Advertiser is using the Console and is participating in the Program for the purpose of executing Media Buys and that any use of the Console for media planning purposes is solely related to such Media Buys. Any use of the Console and the data exposed thereby (including without limitation, forecasted impression counts) for general media planning purposes, extrapolation of data, generation of media trends, or any other purpose not related to the execution of an actual Media Buy through the Program is expressly prohibited. All data exposed by the Console is owned by, and is confidential information of, Navic and its Partners and may not be disclosed to any third party other than any Principal applicable to such Media Buy or its professional advisors or as necessary to comply with a government law, rule or regulation. Advertiser further represents and warrants that it holds and hereby grants Navic and Partners all rights (including without limitation any copyright, trademark, patent, publicity or other rights) in the Creative, Advertised Services, Targeting Options and Media Buy Parameters needed for Navic and Partner to operate the Programs (including without limitation any rights needed to host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, analyze, and create algorithms from and derivative works of the Creative, the Targeting Options or the Media Buy Parameters) in connection with this Agreement ("Licensed Use Rights"). Advertiser represents and warrants that (y) all Advertiser information is complete, correct and current; and (z) any use of the Licensed Use Rights hereunder by Navic and Advertiser's Creative, Targeting Options, Media Buy Parameters and Advertiser's Advertised Services will not violate or encourage violation of any applicable laws, regulations, code of conduct, or third party rights (including without limitation intellectual property rights). Violation of any of the foregoing may result in immediate termination of this Agreement or Advertiser's account without notice and may subject Advertiser to legal penalties and consequences.
  7. Advertiser hereby acknowledges and agree that Navic owns all right, title and interest, including without limitation any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide, in and to the Program (including without limitation Navic's Admira™ advertising placement and optimization technology, Navic′s HyperGate® and other data collection and measurement technology, and all other technologies owned by or licensed to Navic in connection with its provision of the Program), and that Advertiser will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. Navic hereby grants Advertiser a personal, royalty-free, non-assignable and non-exclusive limited license to use the Consoles and associated software as part of the Program. This license is for the sole purpose of enabling Advertiser to participate and use the Program as provided by Navic in the manner permitted by the Terms. Advertiser agrees that it will not (a) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Navic services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto or (b) remove, obscure, or alter Navic's copyright notice, or other proprietary rights notices affixed to or contained within any Navic services, software, or documentation relating to the Program.
  8. Advertiser hereby agrees not to disclose any of the following information (collectively "Navic Confidential Information") without Navic's prior written consent: (a) all Navic software, technology, programming, specifications, materials, guidelines and documentation relating to the Program; (b) any estimated or forecasted impressions or other viewership statistics or data generated from, or displayed in connection with, Advertiser′s use of the Program and the Consoles; and (c) any other information designated in writing by Navic as "Confidential" or an equivalent designation or which by its sense and context and/or the nature of the circumstances surrounding disclosure, should be considered, in good faith, to be treated as confidential, even if it is not so designated. Navic Confidential Information does not include information that (i) has become publicly known to Advertiser through no breach by Advertiser or Navic, (ii) has been independently developed by Advertiser without access to Navic Confidential Information, as evidenced in writing at the time of such independent development; (iii) has been rightfully received by Advertiser from a third party without any similar restrictions on confidentiality; or (iv) is required to be disclosed by law or by a governmental authority, provided that Advertiser shall provide prompt notice of such government order or requirement to the disclosing party to enable Navic to seek a protective order or otherwise prevent or restrict such disclosure.
  9. To the fullest extent permitted by law, NAVIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. To the fullest extent permitted by law, Navic disclaims all guarantees regarding (i) advertising positioning, levels, quality, or timing; (ii) costs per impression; (iii) availability and delivery of any impressions or Creative on any Admira Inventory, or section thereof; (iv) conversions or other results for any advertisements or audiences targeted by the Targeting Options; (v) effectiveness of any advertising campaigns based on impressions forecasted for any Targeting Options or Media Buy Parameters; (vi) the accuracy of any Navic or Partner data (e.g. reach, size of audience, demographics or other purported characteristics of audience) or any forecasted or extrapolated impressions; and (vii) the placement of advertisements within a specific Television Program. Advertiser understands that third parties may generate impressions on Advertiser's advertisements using prohibited or improper means, and Advertiser accepts the risk of any such impressions and clicks. Advertiser's exclusive remedy, and Navic's exclusive liability, for suspected invalid impressions or clicks is for Advertiser to make a claim for a refund in the form of advertising credits for Admira Inventory within the time period required under Section 3 above. Any refunds for suspected invalid impressions are within Navic's sole discretion. EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER AND ADVERTISER'S BREACH OF SECTIONS 6, 7 OR 8, TO THE FULLEST EXTENT PERMITTED BY LAW: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION TO CUSTOMER'S BUSINESS) WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY'S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO NAVIC BY ADVERTISER FOR THE ADVERTISEMENT GIVING RISE TO THE CLAIM. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including without limitation to acts of God, government, terrorism, natural disaster, labor conditions and power failures.
  10. Advertiser shall indemnify and defend Navic, its Partners, agents, affiliates, and licensors from any third party claim or liability (collectively, "Liabilities"), arising out of the use of the Licensed Use Rights, Advertiser's Program use (including the use of the Console), Targeting Options, Media Buy Parameters, Creative and Advertised Services and breach of the Agreement. Partners shall be deemed third party beneficiaries of the above Partner indemnity.
  11. THE AGREEMENT MUST BE CONSTRUED AS IF BOTH PARTIES JOINTLY WROTE IT AND GOVERNED BY NEW YORK LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE NAVIC PROGRAM(S) SHALL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF BOSTON, MASSACHUSETTS, USA, AND NAVIC AND ADVERTISER CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS. The Agreement constitutes the entire and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any other agreements, terms and conditions applicable to the subject matter hereof. No statements or promises have been relied upon in entering into this Agreement except as expressly set forth herein, and any conflicting or additional terms contained in any other documents (e.g., reference to a purchase order number) or oral discussions are void. Each party shall not disclose the terms or conditions of these Terms to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation. Advertiser may grant approvals, permissions, extensions and consents by email, but any modifications by Advertiser to the Agreement must be made in a writing executed by both parties. Any notices to Navic must be sent to Navic Systems, Inc., Admira Operations, 201 Jones Road, 4th Floor, Waltham, MA 02451, USA, with a copy to Legal Department, via confirmed facsimile, with a copy sent via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. Unenforceable provisions will be modified to reflect the parties' intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect. Advertiser may not assign any of its rights hereunder and any such attempt is void. Navic and Advertiser and Navic and Partners are not legal partners or agents, but are independent contractors. In the event that these Terms or a Program expire or is terminated, Navic shall not be obligated to return any materials to Advertiser. Notice to Advertiser may be effected by sending an email to the email address specified in Advertiser's online account, or by posting a message to Advertiser's account interface, and is deemed received when sent (for email) or no more than fifteen (15) days after having been posted (for messages in Advertiser's online interface). Navic may modify these Terms at any time without liability, and Advertiser's use of the Program and execution of any Media Buys that reference or display these Terms after they have been changed constitutes Advertiser's acceptance of the new Terms.