These Hometaurus Advertising Terms and Conditions, together with any Insertion Orders (“IOs”) executed by the parties, shall govern Advertiser’s purchase of Ads from Hometaurus, its subsidiaries and affiliates (collectively, “Hometaurus”). Capitalized terms not defined herein shall have the meaning set forth in IOs. Hometaurus and Advertiser are sometimes referred to individually as a Party and collectively as the Parties
Ad means an advertisement provided by Advertiser for display by Hometaurus.
Advertising Materials means artwork, copy, or active URLs for Ads.
Agreement means the Terms and any IOs.
Content Standards shall have the meaning set forth in Section 2(f).
CPA Deliverables means Deliverables sold on a cost per action basis
CPC Deliverables means Deliverables sold on a cost per click basis.
CPD Deliverable means Deliverables sold on a cost per day
CPM Deliverables means Deliverables sold on a cost per thousand impression basis.
Deliverable or Deliverables means the Ad inventory delivered by Hometaurus (impressions, clicks, or other desired actions).
Insertion Order or IO means a mutually agreed insertion order that incorporates the Terms, under which Hometaurus will deliver Ads for the benefit of Advertiser.
Policies means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Hometaurus’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Hometaurus Network on which the Ads are to appear), other content or advertising policies.
Terms means these Hometaurus Advertising Terms and Conditions.
Third Party Ad Server means a third party’s system that will serve and/or track Ads.
Hometaurus Network means the websites and mobile applications owned or operated by Hometaurus, for which Hometaurus has a contractual right to serve Ads or for which Hometaurus provides a real estate search experience.
Compliance with IO. Hometaurus will deliver the Ads in accordance with these Terms and the specifications set forth in the IO, including but not limited to, size and placement (“Ad Specifications”). Hometaurus will use commercially reasonable efforts to create a balanced delivery schedule, except as set forth in Section 7(c). Any exceptions will be approved by Advertiser in writing. Notwithstanding the foregoing, Hometaurus, at its sole discretion, will determine any Ad Specifications not specified on the IO.
Changes to the Hometaurus Network. Hometaurus will use commercially reasonable efforts to provide Advertiser at least 15 business days prior notification of any material changes to the Hometaurus Network that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO.
Technical Specifications. Hometaurus will provide Advertiser with final technical specifications within three (3) business days of the acceptance of an IO. Changes by Hometaurus to the specifications of already-purchased Ads after that three (3) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time in order to (i) send revised Advertising Materials or (iii) accept a comparable replacement. In such event, the end date for any campaign involving suspended Ads will be extended by a period equal to the period of the suspension.
Content Standards. Hometaurus will use commercially reasonable efforts to not place Ads adjacent to content on the Hometaurus Network that promotes illegal activity, pornography, violence, hate speech, or the use of firearms, or contains obscene language (“Content Standards”), although Hometaurus and its partners will at all times retain editorial control over the Hometaurus Network. Should Ads appear on the Hometaurus Network in violation of the Content Standards, Advertiser's sole and exclusive remedy is to request in writing that Hometaurus remove the Ads and provide makegoods. In cases where a makegood can be shown to be commercially infeasible for the Advertiser, Advertiser and Hometaurus will negotiate an alternate solution. After Advertiser notifies Hometaurus that specific Ads are in violation of the Content Standards, Hometaurus will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Advertiser and Hometaurus will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Advertiser acknowledges and agrees that it will not be entitled to any remedy for any violation of the Content Standards resulting from: (i) Ads placed at locations other than the Hometaurus Network, or (ii) Ads displayed on properties that Advertiser is aware, or should be aware, may contain content in potential violation of the Content Standards.
Submission. Advertiser will submit Advertising Materials in accordance with this Agreement and Hometaurus’s then-existing Policies.
Changes to the Hometaurus Network. Hometaurus will use commercially reasonable efforts to provide Advertiser at least 10 business days prior notification of any material changes to the Hometaurus a Network that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO.
Late Creative. If Advertising Materials are not received by the IO start date, damaged, not to Hometaurus’s specifications, or otherwise unacceptable, Hometaurus will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. In this event, Hometaurus is not required to guarantee full delivery of the IO.
No Modification Hometaurus will use all Ads in strict compliance with the Agreement.
Ad Tags When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.
PAYMENT AND PAYMENT LIABILITY
Invoices. Unless otherwise specified on the IO, Hometaurus will invoice Advertiser for amounts due for Deliverables for each calendar month and invoices will be sent to Advertiser’s billing address as set forth on the IO. Hometaurus will include with each invoice a report setting forth Hometaurus’s summary of the Deliverables delivered during the period covered by each invoice.
Payment Date. Advertiser will make payment 30 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO.
Collections. If Advertiser’s payment method fails or Advertiser’s account is past due, Hometaurus may collect past due amounts using other collection mechanisms, and Advertiser agrees to pay all expenses associated with such collection, including reasonable attorneys’ fees. If Advertiser pays any amounts due with a credit card and the issuer of the credit card seeks to recover from Hometaurus any amounts received by Hometaurus from the issuer, Advertiser will immediately remit to Hometaurus all amounts necessary to comply with the issuer's request and any costs and expenses incurred by Hometaurus in connection therewith.
Confirmation of Campaign Initiation. Hometaurus will provide confirmation to Advertiser within two (2) business days of the start date on the IO, either electronically or in writing, stating whether the Ads detailed on the IO have begun delivery.
Hometaurus Reporting. If Hometaurus is serving the campaign and if requested by Advertiser, Hometaurus will make reporting available to Advertiser weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, Ad placement, impressions, clicks, spend/cost, and other variables as may be defined on the IO. Once Hometaurus has provided the online or electronic report, it agrees that Advertiser is entitled to reasonably rely on it, subject to provision of Hometaurus’s invoice for such period. If Advertiser informs Hometaurus that Hometaurus has delivered an incomplete or inaccurate report, or no report at all, Hometaurus will cure such failure within five (5) business days of receipt of such notice.
Third Party Ad Serving anf Tracking (Applicable only if Third Party Ad Server is specified on an IO)
Ad Serving and Tracking. Hometaurus will track delivery through its ad server and Advertiser will track delivery through such Third Party Ad Server only if Hometaurus has approved a Third Party Ad Server in writing on an IO. Advertiser may not substitute the specified Third Party Ad Server without Hometaurus’s prior written consent.
Third Party Ad Server Reporting Access. If the Third Party Ad Server will provide the Controlling Measurement, Advertiser will provide Hometaurus with online or automated access to relevant and non-proprietary statistics from the Third Party Ad Server within one (1) day after campaign launch. Hometaurus will notify Advertiser if such party has not received such access. If such online or automated reporting is not available, Advertiser will provide placement-level activity reports to Hometaurus in a timely manner, as mutually agreed to by the parties. If both parties have tracked the campaign from the beginning and Advertiser fails to provide such access or reports as described herein, then Hometaurus may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Access given for the Third Party Ad Server, such as login credentials or automated reporting functionality integration, applies to all current and future IOs with Advertiser, such that new access for each IO is not necessary.
Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Hometaurus and Third Party Ad Server measurements.
Third Party Ad Server Malfunction. Where Advertiser is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Advertiser will have 24 hours elect Hometaurus to serve Ads until the Third Party Ad Server is able to serve Ads. If Advertiser does not so elect for Hometaurus to serve the Ads until Third Party Ad Server is able to serve Ads, Hometaurus may use the inventory that would have been otherwise used for Hometaurus’s own advertisements or advertisements provided by a third party.
Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Hometaurus will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Hometaurus owing a makegood to Advertiser.
Notification of Under-delivery. Hometaurus will monitor delivery of the Ads, and will notify Advertiser either electronically or in writing as soon as possible (and no later than 14 days before the applicable IO end date unless the length of the campaign is less than 14 days) if Hometaurus believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Advertiser and Hometaurus may arrange for a makegood consistent with these Terms.
Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, Advertiser and Hometaurus will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. In no event will Hometaurus provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Advertiser.
Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPM Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available. (Each CPL shall mean a CPA per the Terms)
Bonus impressions Where Advertiser uses a Third Party Ad Server, Hometaurus will not bonus more than 10% above the Deliverables specified on the IO without the prior written consent of Advertiser. Permanent or exclusive placements will run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad Server activity. Hometaurus will not charge Advertiser for any additional Deliverables above any level guaranteed or capped on the IO. If a Third Party Ad Server is being used and Advertiser notifies Hometaurus that the guaranteed or capped levels stated on the IO have been reached, Hometaurus will use commercially reasonable efforts to suspend delivery and, within 48 hours of receiving such notice, Hometaurus may either (i) serve any additional Ads itself or (ii) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser but only (A) after such notice has been provided, and (B) to the extent such charges are associated with over delivery by more than 10% above such guaranteed or capped levels.
Generally. Excluding payment obligations, neither party will be liable for delay or default in the performance of its respective obligations under the Agreement if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”).
Cancellation. If a Force Majeure event has continued for more than ten (10) business days, the non-delayed or non-defaulting party has the right to cancel the remainder of the IO without penalty.
Termination without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
With 14 days’ prior written notice to Hometaurus, without penalty, for any guaranteed or non-guaranteed Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight (8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables.
With 30 days’ prior written notice to Hometaurus, without penalty, for any flat fee-based or fixed-placement Deliverable, including, but not limited to, roadblocks, time- based or share-of-voice buys, and some types of cancelable sponsorships.
Advertiser will remain liable to Hometaurus for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by Hometaurus or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Hometaurus will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
Termination for Cause. Either Hometaurus or Advertiser may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 business days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in the Agreement with regard to specific breaches. Additionally, Hometaurus may suspend delivery of Ads under any and all IOs immediately upon written notice to Advertiser in the event of any failure by Advertiser to make any payment hereunder when due (and, if Hometaurus elects to suspend delivery of any Ads, the end date specified in the applicable IO will be extended by a number of days equal to the period of suspension).
Effects of Termination. Sections 10(c), 12, 13, 14 and 15 will survive the termination or expiration of this Agreement.
Hometaurus. Hometaurus hereby represents and warrants to Advertiser that Hometaurus has (i) all necessary power and authority to enter into this Agreement and that (ii) Hometaurus 's execution of this Agreement and performance of its obligations hereunder do not and will not violate any agreement to which it is a party or by which it is bound.
Advertiser. Advertiser hereby represents and warrants to Hometaurus that (i) Advertiser's execution of this Agreement and performance of its obligations hereunder do not and will not violate any agreement to which it is a party or by which it is bound; and that (ii) Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms and Conditions, including any applicable Policies.
Hometaurus. Hometaurus will defend, indemnify and hold harmless Advertiser and each of its Affiliates and Representatives (“Advertiser Indemnified Parties”) from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a third party and resulting from Hometaurus’s breach of the Hometaurus’s representations, warranties, covenants and/or obligations as set forth in this Agreement. Notwithstanding the foregoing, Hometaurus will not be liable for any Losses resulting from Claims to the extent that such Claims result from Hometaurus’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser Indemnified Parties.
Advertiser. Advertiser will defend, indemnify, and hold harmless Hometaurus and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a third party resulting from (i) Advertiser’s breach of the Agreement, (ii) Advertiser’s violation of Policies or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Hometaurus in accordance with these Terms or an IO.
Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
LIMITATION OF LIABILITY HOMETAURUS WILL NOT BE LIABLE TO ADVERTISER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. HOMETAURUS'S ENTIRE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNT PAID BY ADVERTISER TO HOMETAURUS DURING THE TWELVE MONTHS PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO ADVERTISER’S CLAIM.
CONFIDENTIALITY; DATA USAGE
Confidential Information. Each party (the “Discloser”) may disclose to the other party (the “Recipient”) information which has commercial and other value in Discloser’s business and is confidential in nature, hereinafter referred to as “Confidential Information.” Recipient agrees (a) to hold the Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information; (b) not to disclose any such Confidential Information to any third person, unless in performing its obligations or exercising its rights under this Agreement or otherwise authorized to do so; (c) not to make any use whatsoever at any time of Discloser’s Confidential Information except in performing its obligations or exercising its rights under this Agreement. Confidential Information shall not include any information that is (a) in the public domain through no fault of the receiving party; (b) already known by the receiving Party without being subject to any duty of confidentiality to any third party; (c) independently learned or deduced by the receiving Party without any reference to the disclosing Party's Confidential Information; (d) required by the receiving Party to be disclosed by operation of law. The Recipient may disclose the Discloser’s Confidential Information if required to comply with a court order or other government demand that has the force of law. Before doing so, the Recipient must seek the highest level of protection available and, when possible, give the Discloser enough prior notice to provide a reasonable chance to seek a protective order. Each Party acknowledges that breach of this provision by it would result in irreparable harm to the other Party, for which money damages would be an insufficient remedy, and therefore that the other party will be entitled to seek injunctive relief to enforce the provisions of this Section 14.
Advertiser Use of Data. Advertiser will not use Collected Data (as defined below) unless Advertiser is permitted in writing to use such Collected Data by Hometaurus. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in this Section 14(b) shall not prohibit Advertiser from using Collected Data on an Aggregated basis for internal media planning purposes only. “Collected Data” means (i) details set forth on the IO, including, but not limited to, Ad pricing information, description, placement, and targeting information; (ii) data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions); and (iii) any data that is preexisting Hometaurus data used by Hometaurus pursuant to the IO or gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Hometaurus, the Hometaurus Network, brand, content, context, or users as such.
Assignment. Neither Party may assign the Agreement, in whole or in part, without the other Party's prior written consent (which will not be unreasonably withheld), except that either Party may assign this Agreement without such consent to any entity resulting from any merger, consolidation or other reorganization involving the assigning Party, or to which the assigning Party may transfer all or substantially all of its assets; provided that the assignee agrees in writing to be bound by all the terms and conditions of this Agreement. Subject to the foregoing, this Agreement will be binding on and enforceable by the Parties and their respective permitted successors and permitted assigns. Any attempted assignment in violation of this Section 15(a) shall be null and void.
Entire Agreement. Each IO (including the Terms) (i) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO and (ii) may be amended or modified only by a written instrument signed by a duly authorized agent of each Party. No breach of this Agreement by either Party will affect the rights or obligations of either Party under any other agreement between the Parties. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
Publicity. Except as permitted in the Agreement, neither party shall refer to the other party in any advertising, marketing or published communication or use or allow to be used, either party’s name, websites, Ads, logo, trademarks, service marks, patented technologies or copyrighted works, without the prior written approval of the other party.
Choice of Law. All IOs will be governed by the laws of the State of Florida without reference to its choice of law rules to the contrary.
Severability. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect.
Notices. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. Notices will be sent to the addresses specified under each Party's signature on the IO. Any Party may change its address for notice and the address to which copies must be sent by giving notice of the new addresses to the other Parties in accordance with this Section 15(f), except that any such change of address notice will not be effective unless and until received.