Standard Insertion Order Terms and Conditions
The following Terms and Conditions (the “Terms”) are entered by and between Linqia, Inc., a Delaware Corporation (“Linqia) and the client identified in the Insertion Order and/or the agency listed in the Insertion Order for such client (collectively, the “Client”). Linqia and Client are collectively referred to herein as the “Parties” and individually as a “Party”. By signing/executing and accepting one or more Insertion Order(s) (individually and collectively, the “Insertion Order”) for marketing campaigns to be conducted by Linqia, the Client agrees to be bound by these Terms. The Terms, together with the Insertion Order (collectively, the “Agreement”), shall exclusively govern all such marketing campaigns. In the event of any inconsistency between these Terms and the terms of the Insertion Order, the terms of the Insertion Order shall prevail. This Agreement supersedes any and all oral or written agreements or understandings between the Parties as to the subject matter of the Agreement.
DEFINITIONS
“Distribution Partner”: means Linqia’s advertising partners including the Influencers who create, distribute, publish and display Posts through blogs and social media networks or amplified advertising via third party distribution channels to boost content in association with particular campaigns undertaken by Linqia on behalf of Client.
“Influencers”: means individuals, groups or entities who create and distribute content through blogs, social media channels, messages and/or other online media including Posts as part of campaigns conducted through Linqia’s platform and services.
“Insertion Order”: means the separately executed document entered into by the Parties setting forth additional project specific terms and information for each marketing campaign to be performed by Linqia for Client referencing this Agreement.
“Materials”: means the advertising creative, messaging, branding, campaign objectives, guidelines and other materials provided by Client (including, without limitation, video, photographs, images, logos, graphics, messages, data, information, text, links, tags, pixels or other materials and/or advertising or services).
“Posts”: means the Post Content (as defined) posted or transmitted through blogs and other social media channels that are created or sourced by the Influencers for particular social media marketing campaigns conducted on Client’s behalf.
“Post Content”: means the comments, messages, posts, data, commercial content, text, photographs, images, video, music and all other information or communications transmitted through blogs and other social media channels that are created by the Influencers.
“Terms of Use”: means the Linqia online terms that are acknowledged by each Influencer and govern such Influencer’s access to the service and performance of campaigns for Linqia and each Client.
1. Delivery of Advertising Materials. Any and all Materials supplied by Client shall be provided to Linqia in such formats and as otherwise consistent with the Agreement and any noticed requirements. If the Materials are not delivered for the campaign on the agreed upon dates according to the Insertion Order, Linqia may delay the launch of the campaign and the parties will mutually agree to a revised campaign schedule.
2. Posts. Posts will be written by a Distribution Partner based upon the Materials and in accordance with the specifications stated in the Insertion Order and the Influencer Brief (as referenced in the Terms of Use) setting forth the campaign requirements. Client may have the right to review and approve Posts prior to any posting only as specifically reflected in the Insertion Order. All Posts will be prepared with the intent to display the Materials and Client in a positive light. Further, Client acknowledges that comments and responses to Posts may not be positive or favorable to Client, given the nature of social media. Each Post, which begins a conversation string (excluding comments and responses to such Post), may contain one or more URL links to the Client’s or underlying Brand’s designated landing page(s) specified in the Insertion Order (the “Landing Page”), the placement of which will be determined by Linqia and/or its Distribution Partner in their sole discretion. Client will provide Linqia with the correct URL to embed. Linqia will track all visitors who click on the embedded link in the Post (each, a “Click”).
3. Right to Reject. Linqia reserves the right to reject any Materials or Posts that are inconsistent with the marketing campaign as agreed in the Insertion Order, contrary to applicable law or offensive. Linqia will not intentionally cause its Distribution Partners to advertise on any website that contains pornographic, hate material, gambling-related material or any other material deemed illegal or offensive by Linqia in its sole discretion. Notwithstanding the foregoing, Client acknowledges that, given the nature of social media, Linqia cannot control where or how a Post is shared by a website’s visitors nor prevent unauthorized sharing or posting by its Distribution Partners, and Linqia shall not be responsible for any such activity.
4. License. Client grants to Linqia a non-exclusive, royalty-free, worldwide right and revocable license to use, reproduce, copy, publish, display and distribute Client’s name, logo, trademarks, trade names, service marks and other identifiers only as set forth on the applicable Insertion Order or agreed to by Client in writing (“Licensed Marks”), and any Materials that may be delivered by Client to Linqia or Distribution Partners, for the purpose of carrying out the terms and obligations of this Agreement, and the contemplated publication, display and distribution of Posts hereunder by Linqia and the Distribution Partners (the “License”). Client acknowledges that Linqia may use, perform and display Posts, on occasion, via third-party distribution channels. Notwithstanding anything to the contrary herein, Linqia shall have the right to sublicense to participating Distribution Partners and third-party providers (“Permitted Sublicensees”) solely in connection with the performance of the services and Linqia’s obligations hereunder. Client further acknowledges that certain Posts may continue to exist on the internet after the expiration or termination of this Agreement. Accordingly, the License granted by Client herein shall survive expiration or termination of this Agreement for the Licensed Marks and Materials that remain displayed in Posts on the Internet; provided that neither Linqia nor its Distribution Partners or any Permitted Licensees shall further promote the Licensed Marks or Materials after conclusion of a campaign, expiration or termination of the Agreement. Linqia agrees that Licensed Marks and Materials are the sole property of Client and agrees it will not contest ownership of the Licensed Marks and Materials, nor use the Licensed Marks or Materials for any purpose not related to its performance under this Agreement.
The Parties acknowledge and agree that the copyright, and all other right, title and interest, in and to Posts written by Linqia or an Influencer shall remain with Linqia or such Influencer subject to Client’s rights in the Licensed Marks and Materials, as the case may be. Client is granted a non-exclusive, worldwide, royalty free, non-transferable limited right and license, without the right to sublicense except to the advertiser who is the beneficiary of the campaign, to publish, display, transmit and distribute, solely in digital form on the Internet only (and specifically excludes television), all or a portion of the Posts, commencing upon launch of the applicable Campaign and continuing for a period of twelve (12) months thereafter. Client agrees that it will provide attribution of each Post, or portion thereof, to the applicable Influencer in a manner reasonably agreed to by Linqia. Client agrees that it will not use any Post Content: (a) for a purpose unrelated to the promotion of the brand identified in the applicable Insertion Order; (b) in such a manner as to alter or distort the original content or message of the Post; (c) in any manner which is adverse to or competitive with Linqia; (d) in a manner that is illegal or unlawful in any way; or (e) in a manner that is false, misleading, or inaccurate.
In connection with these ownership rights and limited license, the parties acknowledge and agree that Linqia has invested significant resources and assets in establishing and developing relationships with Influencers in order to perform effective results-oriented marketing campaigns through its platform and services. Accordingly, the parties agree that Client shall be prohibited from directly or indirectly circumventing Linqia by engaging with any Influencer participating in a Linqia executed campaign on behalf of Client in order to utilize or boost Post Content outside the scope of such campaign. Client shall not independently solicit, initiate or engage in campaigns with Linqia Influencers where the subject matter or content of such campaign substantially relates to the subject matter or content of any Linqia initiated campaign with such Influencer on behalf of the Client.
The Parties further acknowledge and agree that the copyright, and all other right, title and interest, in and to posts written by Client and to Client’s Materials shall remain with Client, and Linqia shall have no rights therein except as set forth in this Agreement or unless Client otherwise grants Linqia rights in the Insertion Order or a separate writing.
In the event Linqia specifically grants to Client any other rights, which shall be expressly stated in the applicable Insertion Order or separate writing, to any other materials or work product created by Linqia or on its behalf, Linqia shall retain all right, title and interest to all pre-existing work, creations, data, materials (excluding client’s Materials) and intellectual property (including but not limited to software, inventions, copyrights, patents, trade secrets, trademarks and other proprietary rights, including ideas, concepts and knowhow of Linqia) that existed before the commencement of the services pursuant to the applicable Insertion Order or that were created independent of the applicable Insertion Order. All rights not expressly granted under this Agreement or other written agreements between the Parties are reserved.
5. Publicity. Client agrees that Linqia may use publicly available information relating to the Campaign, Client’s name, Licensed Marks and logo, or otherwise refer to Client, in its marketing materials and websites in a list of Linqia’s customers, and in any advertisement, news release or other publication of Linqia for the purpose of promoting Linqia and/or its services.
6. Disclaimers. Linqia will make commercially reasonable efforts to ensure that the amounts payable by Client hereunder are not based upon any fraudulent Clicks, but Linqia does not make any representation or warranty that fraudulent Clicks will not occur. Except as otherwise provided herein, LINQIA MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING LINQIA’S SERVICES OR ANY PORTION THEREOF INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
7. Tracking; Reporting. Pursuant to the Insertion Order requirements, Linqia will report the applicable supporting analytics to Client (including Clicks and Engagements as applicable) on a weekly basis via email, or will otherwise make available to Client access to an online reporting tool in order to review analytics information. Reporting on performance and delivery is handled by Linqia based on its numbers and measurement processes. Such measurement processes will also be used for invoicing fees under an Insertion Order. All payments relating to campaign performance will be made based on the agreed upon measurement units, pursuant to the applicable Insertion Order, and as determined by Linqia’s tracking unless explicitly noted and agreed to otherwise in the applicable Insertion Order. With respect to Clicks, Client acknowledges and agrees that a Click does not guarantee that a visitor will actually arrive at the requested target Landing Page and that a Click will be considered valid even if the target Landing Page is busy or not available. With respect to reach, Linqia cannot track organic social Posts’ reach and accordingly uses standard industry projection models to estimate the campaign’s reach. If Linqia has expressly pre-approved the use of a third-party tracking provider for performance or billing purposes, as specifically reflected in the applicable Insertion Order, the Client may, at its or their sole cost, use the following third-party tracking providers to measure Clicks: DART (DFA/DoubleClick), Flashtalking and Sizmek. Linqia will not accept any other third-party tracking providers or tracking tags (for example link appendages or masking) and will only accept a raw or direct link to the campaign Landing Page. Linqia shall not be bound by any measurement or reporting provided by any non-preapproved vendor. If a Third-party is used, then simultaneously with Client’s delivery of Materials to Linqia (but in no event later than four (4) business days prior to the scheduled start of the media flight), Client, will provide Linqia with login credentials/access (or other mutually agreed automated reporting functionality integration) and appropriate associations to the Ad for tracking and reporting purposes (including for Linqia to generate reports necessary to comply with the foregoing reporting requirement) and Client will use commercially reasonable efforts to ensure the Third-party Ad Server’s system generates accurate, complete and up-to-date reports. Client’s failure to comply with the foregoing shall release Linqia from any makegood or other similar obligations. Other than Linqia’s measurements, only the measurements by the Third-party provider specified in the Insertion Order will be permitted for billing purposes.
8. Terms of Payment. Unless otherwise stated in the Insertion Order, Client will pay Linqia an amount equal to the campaign budget set forth on the Insertion Order (“Budget”) within the earlier of: (a) thirty (30) days from the invoice date; or (b) seven (7) days prior to the campaign launch date set forth on the applicable Insertion Order. Client acknowledges and agrees that once the Insertion Order has been executed by Client and Linqia, the campaign budget corresponding to the applicable Insertion Order will be committed to the campaign and should Client cancel the Insertion Order in total after outreach has commenced Client shall be responsible and liable for payment of the full budget of the Insertion Order. Should Client cancel the Insertion Order prior to outreach, Client shall pay 50% of the associated Insertion Order budget. Any delay to the launch date exceeding 6 days caused by Client’s actions after Influencer outreach has commenced shall result in Client’s immediate obligation to pay the full Insertion Order budget; and any such delay occurring prior to outreach commencement shall result in Client’s immediate obligation to pay 25% of the Insertion Order budget. In any such instance of delay after outreach has commenced and delays prior to outreach that shift performance to a subsequent accounting quarter, Client shall be required to pay a surcharge of 25% of the Insertion Order budget in order to maintain the same deliverables in addition to payment of the Insertion Order budget according to the stated terms. For all payments due to Linqia under the Insertion Order, Client shall pay Linqia within the number of days set forth in the “Payment Terms” portion of the Insertion Order (or within thirty (30) days, if no number is stated) after the end of the calendar month for which an invoice is delivered. Failure to pay in a timely manner shall constitute a material breach of this Agreement. Payment not made within thirty (30) days of the due date shall accrue interest at the rate of 1.0% per month or any portion thereof, or if less, the highest rate permitted under law. All costs of collection including, but not limited to, reasonable outside attorney’s fees, court costs and related expenses, incurred by Linqia shall be borne by Client. Client shall pay all sales, use, excise and other taxes which may be levied upon either Party in connection with this Agreement, except for income taxes based on Linqia’s income.
9. Representations and Warranties. Client represents and warrants to Linqia that (i) it is the owner (or is otherwise the authorized licensee) of the copyright or other intellectual property rights in the Licensed Marks and the Materials, and has the right to deliver to, and to authorize Linqia and its Distribution Partners to, display, perform, distribute and exploit the Licensed Marks and Materials in the manner contemplated by this Agreement without additional fee or payment whatsoever to any third-party, and (ii) it has full power and authority to enter into this Agreement and to perform its obligations under this Agreement. Client further represents and warrants that none of the Licensed Marks, Materials or Landing Pages shall: (a) be unlawful, libelous, defamatory, fraudulent, deceptive or misleading; or (b) infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary rights of any party, or otherwise include content that Client does not have the lawful right to distribute and reproduce. Linqia represents and warrants to Client that Linqia and Distribution Partner will comply with all applicable FTC disclosure guidelines, including but not limited to, the FTC Guides Concerning the Use of Endorsement and Testimonials in Advertising. Linqia shall monitor Distribution Partner’s compliance on a regular basis and will take appropriate action to maintain compliance. Any Distribution Partner who is found to be in non-compliance on a recurring basis shall be terminated from the associated campaign.
10. Indemnification
10.1 Client. Client shall at all times remain solely liable for the Licensed Marks, Materials and Landing Pages. Client shall defend, indemnify and hold Linqia and the Distribution Partners, and their respective officers, directors and employees, harmless from any claim, action, demand, loss, liability, cost, expense or damages (including reasonable attorney’s fees) made or incurred by any third-party arising out of or relating to the Licensed Marks, Materials, or Landing Pages, or a breach of Client’s representations, warranties, covenants or agreements herein.
10.2 Linqia. Linqia agrees to indemnify and defend Client against any third-party claim or action due to infringement of a valid U.S. copyright, trademark, or a U.S. patent issued on or before the execution date of the Insertion Order solely caused by Linqia’s use of software to distribute and display Materials pursuant to the Insertion Order and Linqia agrees to pay all settlements of such claims approved by Linqia and all damages awarded against Client (including reasonable attorneys’ fees) by final and non-appealable order of a court of competent jurisdiction. Notwithstanding the foregoing, Linqia shall have no obligation under this Section 10.2 with respect to any claim based upon any infringement which results from any Licensed Marks, Materials or Landing Pages or the combination, operation or use of any third-party materials with the software used by Linqia to distribute and display Materials pursuant to the Insertion Order. The foregoing states Linqia’s sole and exclusive liability for any infringement of intellectual property rights and is provided in lieu of any warranty of non-infringement.
11. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY OR ANY AFFILIATE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOSS OF REVENUES, PROFITS, DATA, BUSINESS OR BUSINESS INTERRUPTION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THIS EXCLUSION WILL APPLY REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED, WHETHER THE PARTIES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER SUCH DAMAGES WERE REASONABLY FORESEEABLE. WITH THE EXCEPTION OF INDEMNIFICATION (SECTION 10), CONFIDENTIALITY OBLIGATIONS (SECTION 14) AND PAYMENT OBLIGATIONS (SECTION 8) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR AN AMOUNT IN EXCESS OF THE AMOUNT PAID BY CLIENT TO LINQIA PURSUANT TO THE INSERTION ORDER CORRESPONDING TO THE CAMPAIGN IN WHICH LIABILITY AROSE.
12. Insurance. Linqia agrees to carry and maintain insurance policies with coverage of at least the following amounts during the duration of the applicable Insertion Order: Commercial General Liability of at least $1,000,000 per occurrence and $2,000,000 general aggregate; Workers Compensation (as required by law) and Professional Errors and Omissions Liability of at least $1,000,000.
13. Limited Remedy. With respect to billable metrics, in the event any campaign fails to produce the agreed upon performance goals according to the billable metrics specified in the billable metrics section of the applicable Insertion Order, Client agrees that Linqia shall have the right to extend the campaign by up to fourteen (14) days in order to meet the requisite performance goals stated in the Insertion Order. If, after the extended campaign, the performance goals have still not been met, Linqia shall be paid on a pro-rata basis according to the performance goals achieved and in the case of advance payment, Linqia will issue a refund to the Client in an amount equal to the proportion of the undelivered performance.
14. Confidentiality
14.1 Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the Party disclosing such information (“Disclosing Party”) when given to the Party receiving such information (“Receiving Party”); and (ii) information and data provided by the Disclosing Party, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Any information about Linqia’s pricing terms, the monetary terms of this Agreement, and the Distribution Partners (including the identity of) is the Confidential Information of Linqia. The Receiving Party will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. The Receiving Party shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third-party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Neither Party will use any portion of Confidential Information provided by the other Party hereunder for any purpose other than those provided for under this Agreement.
14.2 Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” shall not include information which: (a) was in the public domain at the time it was disclosed to the Receiving Party; (b) entered the public domain subsequent to the time it was disclosed to the Receiving Party, through no fault of the Receiving Party; (c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was disclosed to the Receiving Party; (d) was rightfully communicated to the Receiving Party free of any obligation of confidence subsequent to the time it was disclosed to the Receiving Party; or (e) was independently developed, without use of or reference to Confidential Information, by employees or agents of the Receiving Party who had no access to any Confidential Information. Notwithstanding the above, the Receiving Party may disclose certain Confidential Information of the Disclosing Party, without violating the obligations of this Agreement, to the extent such disclosure is: (1) necessary to enforce the rights of either Party under these Terms, provided, however, that both the Disclosing Party and the Receiving Party will stipulate to any orders necessary to protect such information from public disclosure; or (2) required by a valid order of a court or other governmental body having jurisdiction, provided that the Receiving Party provides the Disclosing Party with prompt prior written notice of such disclosure and cooperates with the Disclosing Party in any lawful action to contest or limit the scope of such required disclosure.
15. Disclosures. Linqia will disseminate the Materials and project requirements according to the provisions of the Insertion Order and Linqia’s Influencer Terms of Use that apply to and bind all Influencers. The Influencer Terms of Use require that Influencers comply with all applicable FTC disclosure guidelines, including but not limited to, the FTC Guides Concerning the Use of Endorsement and Testimonials in Advertising and .com Disclosures: How to Make Effective Disclosures in Digital Advertising. Client shall be a third-party beneficiary under the Terms of Use with right of direct enforcement against the Influencers.
16. Termination. Without limiting any other provisions herein, Linqia reserves the right to terminate this Agreement at any time upon Client’s default in the payment of any amounts due hereunder and failure to cure such default within five (5) days after receipt of written notice thereof; and either Party shall have the right to terminate this Agreement at any time: (i) in the event of any breach by the other Party of any of its representations, warranties, covenants or agreements contained in this Agreement and a failure to cure such breach within twenty (20) days after receipt of written notice thereof; or (ii) if the other Party becomes insolvent, files an assignment for the benefit of creditors, or if any bankruptcy or insolvency proceedings are commenced by or against the other Party. In the absence of breach by Linqia, upon termination, all amounts due to Linqia hereunder shall become immediately due and payable. Client acknowledges and agrees that upon execution of the Insertion Order, the campaign budget corresponding to the applicable Insertion Order will be committed to the campaign and Client shall remain responsible and liable to Linqia for payment of the full budget of the Insertion Order in the absence of a breach by Linqia in accordance with the terms of the Agreement.
17. Non-Solicitation. During the term of this Agreement, and for a period of twelve (12) months thereafter, Client shall not solicit for employment or hire any employees of Linqia. For this purpose, “solicitation” does not include contact resulting from indirect means such as public advertisement, placement firm searches or similar means not directed specifically at the employee to which the employee responds on his or her own initiative. The parties acknowledge and agree that a breach of this “Non-Solicitation” clause will give rise to a right of termination of this Agreement and Linqia will also have the right to seek and recover damages resulting from such breach.
18. Miscellaneous. This Agreement sets forth the entire agreement of the Parties, constitutes a binding agreement of the Parties upon the execution hereof, and supersedes any and all prior oral or written agreements or understandings between the Parties as to the subject matter hereof. This Agreement may only be modified, amended or changed in a writing signed by both Parties. Only a writing signed by both Parties may change an Insertion Order. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflicts of law principles. The Parties irrevocably consent to the exclusive jurisdiction and venue of the appropriate federal or state court in California for any action or proceeding arising out of or relating to this Agreement and each Party irrevocably waives the defense of an inconvenient forum to the maintenance of any such action or proceeding. No Party has relied on any statement, representation, warranty, or promise not expressly contained in this Agreement. The failure of either Party to enforce any of the provisions of this Agreement, or the failure to require at any time the performance of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions (or any other provision), nor in any way affect such Party’s ability to enforce each and every provision thereafter. Any cause of action or claim that either Party may have with respect to this Agreement must be commenced within one (1) year after the claim or cause of action arises. If any provision of this Agreement is found unenforceable, invalid, or otherwise contrary to law, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose, and all other provisions hereof will continue in full force. Neither Party may assign this Agreement without the prior written consent of the non-assigning Party and any purported assignment without such consent shall be null and void except where such assignment is pursuant to a merger or transfer of substantially all of the assets of the assignment Party. The Parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. 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. Neither Party nor its affiliates shall be responsible or liable for any loss, payment or delay resulting from any force majeure event, including strikes, lockouts, embargoes, labor problems, fuel or power shortages, fire, floods, accidents, civil disturbances, war, acts of God, or other cause beyond their control. The headings and titles of the provisions of this Agreement are inserted for convenience of the Parties only and will not affect the construction or interpretation of any provision hereof.
STANDARD TERMS VERSION DATED September 1, 2022
For Standard Terms executed prior to September 1, 2022 contact legal@linqia.wpengine.com
