These terms last revised and are current as of the effective date set forth above. Topple reserve the right to change these terms from time to time.
Topple Ads Terms and Conditions
These Topple Ads Terms and Conditions (“Terms”) are entered into by Topple Ad Network Inc. (“Topple”) and the entity executing an Insertion Order or using the Topple dashboard (“Customer”). These Terms govern Customer’s use of the Topple service, and together with an Insertion Order (or the information entered through the Topple dashboard (“Dashboard”) comprise the ” Agreement ” between Topple and Customer. If there is any inconsistency between: (i) the terms of a signed Insertion Order or those entered through the Dashboard (either “ Campaign Details ”), and (ii) these Terms, the Campaign Details as applicable, shall prevail.
1.1 Topple partners with a network of online properties (the “Network”) and displays a user interface containing links that navigate to websites (the “Service”). Topple uses its proprietary algorithms to determine what links appear within the Service on the Network.
1.2 Topple shall display links to graphical, textual, video and/or auditory content selected by Customer (the links and the content accessed from the link together are the “Content”) on the Network through the Service. Topple shall continue to distribute the Content on the Network until the earlier of: (i) the end date of Customer’s campaign, (ii) reaching Customer’s budget, or (iii) the disabling of a campaign (provided that Topple reserves the right to charge for additional Actions as the Content is removed from circulation – see FAQs for more details).
1.3 Topple does not guarantee: (i) the placement, positioning or the timing of delivery of any Content, (ii) clicks or impressions (including clicks from a particular audience segment) or (iii) conversions. If Fees (as defined in Section 5) do not reach Customer’s budget, Customer’s sole remedies shall be to: (i) extend the end date of the applicable campaign, (ii) replace or add to the Content with other Content (also subject to Section 2 below) to complete the campaign; or (iii) to pay only for accrued fees on the Content. In no event shall Topple be liable for failure to deliver traffic to Content.
1.4 Topple will make reports available to the Customer regarding the campaign(s). The final monthly reports (which may differ from the daily reports) will provide the conclusive basis for Topple’s calculation of the fees owed by Customer. Customer may submit its own Topple-compatible tracker. If there is a 10% discrepancy or more between Customer’s numbers (based on the Topple-compatible tracker) and Topple’s numbers then the parties agree to work in good faith to identify the correct amount to be paid to Topple. If the discrepancy is less than 10%, Topple’s numbers shall be conclusive.
2.2 Customer represents and warrants that: (i) if the Content was written by or under the direction of Customer or paid for by Customer, that fact shall be clearly disclosed on or near the Content; (ii) it is authorized to use and/or has approved all words of the Content’s headline (whether written by Customer or on Customer’s behalf); (iii) Content headlines accurately reflect the tone and subject matter of the Content; and, (iv) it is authorized to use and/or has approved any image(s) related to its campaign(s) with Topple.
2.3 Customer shall not, directly or indirectly, provide Content that: (i) is obscene, defamatory, libelous, slanderous, pornographic, violent, profane, indecent or unlawful; (ii) is factually inaccurate, misleading or deceptive; and/or (iii) facilitates or promotes any type of illegal activity, including without limitation pyramid schemes, gambling, the sale or use of illicit drugs, or discrimination or harassment of any individual or group. Further, each piece of Customer Content shall neither (a) redirect to a destination other than as originally submitted to the Service, and/or (b) be substantively different from the Content originally submitted to the Service.
2.4 Both parties shall implement anti-malware scanning processes of the Content. Upon notice, both parties shall take immediate action to remove any suspicious Content from the Network.
3. Term and Cancellation
The Campaign Details will set forth the start and end date of a particular campaign. However, the Agreement, or an individual campaign may be suspended or terminated: (i) by Customer for any reason upon two (2) business days’ written notice to Topple or within twelve (12) hours through the Dashboard, or (ii) by Topple for any reason upon fourteen days (14) days’ written notice to Customer. During the notice period, all previously contracted campaigns shall continue to run pursuant to the Campaign Details and Customer shall be responsible for paying Topple for all Fees accrued during such notice period. Topple also reserves the right to suspend or terminate Customer’s use of the Service if Topple reasonably believes Customer is in breach of the terms of this Agreement.
4. Campaign Details
If Customer utilizes Topple’s Dashboard, Customer will have access to certain online reports and control over its campaign(s). To the extent Customer registers and has access to the Dashboard, Topple may collect certain personal data of the Customer. We collect and process this personal data in order to respond Customer questions or requests, provide Customer’s with access to certain services, verify Customer’s identity and communicate with Customers about the use of the Service. Customer is solely responsible for all changes requested or approved (either directly or via Topple’s API), including those made through the Dashboard using its login. Customer is solely responsible for protecting its login and password to the Dashboard. Customer can manage campaigns using the Dashboard by modifying the Campaign Details, and/or Customer may have the option of working with an Topple account manager, as determined by Topple.
5. Fees and Payment Terms
5.1 “Fees” are based on deliverables sold via one of following payment methods: (i) cost-per-click (“CPC”), (ii) cost-per thousand impressions (“CPM”), or (iii) other desired actions agreed between the parties from time to time, each an “Action”. Customer shall pay Topple Fees for Customer Content delivered via the Network as measured by Topple’s tracking system, and any applicable taxes. If CPC is being used for campaign measurement, such CPC may not be less than Topple’s then-in-effect minimum CPC (which may vary by market). If Customer is utilizing Topple’s automatic bidding feature, Customer grants Topple the right to set and modify Customer’s CPC at Topple’s discretion to aid in achieving Customer’s targets for its campaign. Customer shall be solely responsible for any additional fees incurred for utilizing third party ad serving on its campaign(s). Customer may increase or decrease its budget through the Dashboard or through an amendment to an Insertion Order.
5.2 If Customer has signed an Insertion Order, Fees will generally be invoiced by Topple to Customer by the end of the following calendar month, unless otherwise set forth in an IO. Customer shall pay all invoices within thirty (30) days from receipt. Any portion of a charge not disputed in good faith must be paid in full. If Customer has provided the Campaign Details through the Dashboard or has signed an Insertion Order and has used a credit card for billing purposes, Topple shall charge the Topple fees (including processing fees) to Customer’s credit card at such intervals as Topple determines in its sole discretion. The decision as to whether to allow Customer to choose between invoice and credit card rests solely with Topple. Topple shall review all billing inquiries, including refund requests, on a case-by-case basis and reserves the right to approve or deny any request in its sole discretion.
5.3 If Customer disputes any amount on an invoice, Customer should provide written notice to Topple (email is sufficient) within thirty (30) days of receipt of invoice. Customer’s email must include the amount disputed and provide adequate information to support any such claim. Within twenty (20) business days of receipt of Customer’s email, Topple will investigate and provide Customer with a written response. Customer may not withhold payment for any undisputed amounts, and any portion of a charge not disputed in good faith within thirty (30) days from receipt of invoice must be paid in full.
5.4 If payment is not made when due and not properly disputed pursuant to Section 5.3, Topple may charge interest at the rate of 6% per annum from the due date until the date of actual payment, whether before or after judgment. Topple also reserves the right to suspend or terminate Customer’s use of the Service until Customer has paid all amounts due and to charge Customer for all costs of collection, including collection agency and reasonable legal fees and court costs. Customer authorizes Topple to investigate Customer’s credit record. If applicable, Customer agrees to provide such further financial information and documentation as may be required from time to time by Topple as a condition for the continued extension of credit. Customer acknowledges and agrees that any account, credit card and related billing and payment information which Customer provides to Topple may be shared by Topple with companies who work on Topple’s behalf solely for the purpose of performing credit checks, effecting payment to Topple, collecting debts owed to Topple and/or servicing Customer’s account. Topple may, in its sole discretion, extend, revise or revoke credit at any time.
6. Additional Features and Terms
6.1 Topple may also make additional Service features available to Customer from time to time and use of such features may be subject to Customer’s agreement to certain additional terms and conditions (“Additional Terms”) (e.g., via an online click-through agreement or via the Dashboard). Such features will be provided at Topple’s discretion to Customer and may include fees in addition to those described in Section 5.1. Customer’s acceptance of the Additional Terms will constitute a binding and enforceable agreement as between Topple and Customer. In the event of any inconsistency between these Terms, the Additional Terms, and the Campaign Details, the order of precedence is: (i) Additional Terms, (ii) Campaign Details, and (iii) these Terms.
7.1 Each party agrees that with respect to any Confidential Information (as defined below) that is disclosed by one party to the other in connection with the Agreement, the party receiving such Confidential Information shall not disclose such Confidential Information to any third party, or use it for any purpose, except in connection with its rights and obligations under the Agreement. “Confidential Information“ means all information concerning a party or any of its subsidiaries or affiliates that is not generally known to the public, which information is marked confidential or proprietary, or which under the circumstances ought reasonably to be treated as confidential or proprietary, and includes, without limitation, the terms of the Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is, as of the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (ii) was lawfully in the possession of the receiving party as of the time of disclosure; (iii) is independently developed by the receiving party without reference to the Confidential Information; or (iv) is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed.
7.2 Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. Confidential Information shall not be released by the receiving party to anyone except an employee or agent, who has a need to know same, and who is bound by confidentiality obligations at least as restrictive as these contained herein. Neither party will use any portion of Confidential Information provided by the other party pursuant to the Agreement for any purpose other than as expressly set forth under the Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information strictly necessary to comply with the demands of any court order, law or governmental agency and Topple may share Confidential Information of Customer with any holding company of Customer or with any subsidiary company of Customer’s holding company.
7.3 If Customer is acting on behalf of a Content provider, Customer authorizes Topple to grant such Content provider (or any subsequent third party appointed by the Content provider) access to and a right to use the Campaign Details.
8. Additional Representations and Warranties/Disclaimers
8.1 Each party represents and warrants to the other party that: (i) it has all necessary rights and authority to enter into the Agreement and grant the rights and licenses under the Agreement; (ii) it shall comply with Applicable Laws and (iii) the execution or acceptance of the Agreement (which includes the Campaign Details), and the performance of its respective obligations and duties pursuant to the Agreement, do not and will not violate any agreement to which such party is bound. “Applicable Laws” means any applicable federal, national, state or foreign laws or regulations or any industry self-regulatory rules or guidelines (including the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the NAI Code of Conduct, the DAA Self-Regulatory Principles for Online Behavioral Advertising. Any Applicable Laws related to the privacy of personal data are referred to as the “Data Protection Laws”.
8.2 Customer further represents and warrants that: (i) the Content does not violate any Applicable Laws, rules and regulations and will not contain any material which may be harmful, abusive, obscene, threatening or defamatory; (ii) it has all necessary rights to permit and grants Topple pursuant to the Agreement all such rights which are necessary for Topple to (as applicable) use, host, cache, route, store, copy, modify, distribute, reformat, reproduce, publish, display, transmit and distribute the Content; (iii) use of the Content in accordance with the Agreement will not infringe any intellectual property rights of any third party; (iv) it cannot and will not attempt to provide Content that is targeted to children under the age of thirteen; (v) it will not use the Service in a manner that provides an unintended advantage or interferes with the integrity and/or overall performance of the Service, and (vi) if using the Dashboard, Customer will adhere to any rules of such use as solely determined by Topple (e.g. not using source bidding to whitelist any particular Network source).
8.3 If Customer is an agency (or other third party acting on behalf of the provider of the Content), Customer represents and warrants that: (i) it is the authorized agent of the provider of the Content; (ii) it has the legal authority to enter into the Agreement and make all decisions and take all actions relating to the provider of the Content; (iii) it has entered into a written agreement granting the agent the authority to represent the provider of the Content in accordance with (i) and (ii) above (and shall submit such agreement to Topple on demand). Customer further agrees that it is not acting on behalf of a French company or a foreign company whose advertising content mainly targets French territory exclusively through the Dashboard. If Customer is acting on behalf of a French content provider, please contact [email protected] for more information on how to purchase Topple Services.
8.4 EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THE AGREEMENT, TOPPLE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED — INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE — ABOUT ITS SERVICES AND THE PERFORMANCE OR SUCCESS OF ANY CAMPAIGNS MADE BY IT ON BEHALF OF CUSTOMER, OR THAT THE SERVICE WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE.
9. Data Protection
9.1 The parties acknowledge that some or all of data used or collected through the Service (or use of Topple Pixels) may qualify as, or include, personal data, however, as of the Effective Date, Topple does not send and/or receive any end-user data to the Customer.
10.1 Each party shall defend, indemnify and hold harmless the other party and its respective agents, affiliates, subsidiaries, directors, officers, employees, contractors, and Network partners (as applicable) against any and all third party claims resulting from the breach of such party’s duties, obligations and representations under the Agreement.
10.2 In connection with any such claim: (i) the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (provided that the failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations in the Agreement, except to the extent it has been damaged thereby); (ii) the indemnifying party shall have sole control of the defense or settlement of the claim (provided that the indemnifying party may not enter into any settlement that may adversely affect the rights or obligations of the indemnified party without the indemnified party’s prior written consent); (iii) at the indemnifying party’s request and expense, the indemnified party cooperating in the investigation and defense of such claim; and (iv) the indemnified party shall have the right to participate in its defense with counsel of its own choosing at the indemnified party’s expense.
11. Limitation of Liability
EXCEPT WITH RESPECT TO CLAIMS ARISING FROM A PARTY’S INDEMNITY OBLIGATIONS, WILLFUL MISCONDUCT OR A BREACH OF THE CONFIDENTIALITY, DATA PROTECTION PROVISIONS AND/OR NON-PAYMENT OF FEES OWED IN THE AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, VENDORS, NETWORK PARTNERS OR AGENTS FOR ANY ACTION REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN TORT OR CONTRACT, ARISING UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS IMPLEMENTATION SHALL BE LIMITED TO THE GREATER OF: (I) THE AMOUNT OF FEES PAYABLE BY CUSTOMER UNDER THE AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM; AND (II) $50,000. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST REVENUES OR LOST PROFITS, ARISING OUT OF OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS IMPLEMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.1 Neither Party may assign the Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other; provided, however that either party may assign its rights or delegate its duties under the Agreement, in whole or in part, without the other’s consent, in connection with a merger, reorganization or sale of all, or substantially all, of the assignor’s assets, provided that the successor entity shall have sufficient resources to fully perform the Agreement and shall assume the obligation to fully perform the Agreement.
12.2 The Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts entered into and wholly to be performed therein, without regard to that body of law relating to conflict of laws. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America, in each case located in the County of New York, for any claim arising out of or relating to the Agreement (and agrees not to commence any claim relating thereto except in such courts). The prevailing party in any action arising out of or to enforce the Agreement shall be entitled to recover its reasonable attorney’s fees and costs.
12.3 No press releases or general public announcements shall be made without the mutual written consent of Customer and Topple. Topple shall have the right to include Customer’s name including, but not limited to in Topple’s client list and in other marketing materials. Customer shall not use Topple’s name, logo or trademark without Topple’s prior written consent.
12.4 All notices under the Agreement will be in writing and will be delivered by personal service, confirmed by email, express courier, or certified mail, return receipt requested, to the address of the receiving party set forth on the IO, or at such different address as may be designated by such party by written notice to the other party from time to time. Notice will be effective on receipt.
12.5 No failure of either party to enforce any of its rights under the Agreement will act as a waiver of such rights. If one or more provisions of the Agreement are held to be unenforceable under Applicable Laws, then such provision(s) shall be excluded from the Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms.
12.6 Neither party shall be liable for any delay or failure to perform any of its obligations set forth in the Agreement due to causes beyond its reasonable control. Neither party shall be liable for any unavailability or inoperability of the Internet, technical malfunction, or computer error or corruption resulting in loss of data or other harm.
12.7 Sections 6, 8, 9,10, 11, and 12, together with any outstanding undisputed payment obligation, shall survive the termination of the Agreement.
12.8 Customer and Topple shall each act as independent contractors. Nothing in the Agreement shall be deemed or create or construed as creating a joint venture or partnership between the parties.
12.9 The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and may not be modified without the prior written consent of both parties. In no event shall any inconsistent or conflicting terms and conditions contained in any purchase order, insertion order, invoice or other document submitted by Customer concerning the subject matter hereof have any force or effect even if accepted or signed by Topple.