Advertiser Terms & Conditions

Managed Service

Last Updated February 15, 2023

This Advertiser Agreement (‘Agreement’) is entered into by Shopnomix, LLC (‘Shopnomix’, ‘Company’), a Delaware Limited Liability Company, and the individual or entity who signed up through the Company’s online interface or entered into an Insertion Order for the Company Services (‘Advertiser’) (each a ‘Party’ and, collectively, the ‘Parties’). The terms and conditions contained herein shall constitute a legally binding and enforceable agreement between Advertiser and Shopnomix.  

1. Insertion Orders; Licenses.
   1. Insertion Orders. The Parties agree that certain terms relating to this Agreement may be set forth in one or more insertion orders executed by both Parties (each, an ‘Insertion Order’). Upon execution by both Parties, each such Insertion Order shall become a part of and subject to the terms and conditions of this Agreement.
   2. Licenses. Company hereby grants Advertiser a revocable, non-exclusive, non-transferable license to use the Company Products designated in any Insertion Order and any related services provided by Company.
2. Deliveries; Implementation; Request Volume; Tracking and Reporting; Traffic Quality
   1. Deliveries. Advertiser will provide Shopnomix with paid navigation links (“Shopnomix Listings”) for use with the Company Products. When Shopnomix receives a request for content relevant to the Listings provided by Advertiser, it may, at its sole discretion, deliver that request to Advertiser for monetization.
   2. Implementation. Shopnomix will make reasonable efforts to adhere to implementation restrictions of Advertiser, including, but not limited to, limitations on budgeting, impression caps, and geographical targeting.
   3. Request Volume. Shopnomix makes no guarantee regarding the levels of impressions or clicks available for any Shopnomix Listing.
   4. Tracking and Reporting. The parties agree that Shopnomix will be solely responsible for: (a) tracking and calculating clicks delivered and all other traffic measurements or data; (b) determining the quality of each click; and (c) reporting and calculating revenue Payments.  No other traffic measurements or calculations will be deemed relevant nor affect either party’s performance under this Agreement. The traffic measurements and data of Shopnomix shall be determinative of the payment obligations hereunder. Shopnomix agrees to provide Advertiser with sufficient reporting to assess performance.
3. Payments; Discrepancy; Disputes
   1. Payments. All revenue earned by Shopnomix shall be paid by Advertiser within thirty (30) days of receipt of invoice.  Shopnomix shall send an invoice to Advertiser on or about the fifth of each month for revenue generated during the prior month.  This invoice will be sent electronically to an address designated by Advertiser.
   2. Discrepancy. In the event of a discrepancy between Shopnomix and Advertiser reporting, Advertiser will provide written notice to Shopnomix within seven (7) days of the discrepancy and the parties will facilitate a reconciliation effort between Shopnomix and Advertiser
   3. Disputes. The Advertiser agrees to address any questions it may have concerning payments under this Agreement within thirty (30) days of the receipt of the relevant invoice in writing or by email.  Failure to notify Shopnomix within this period will constitute an acceptance of, and agreement with, the applicable payment.
4. Confidentiality; Privacy; Non-Solicitation
   1. “Confidential Information” means any information disclosed by a party to another party during the Term (and any renewal terms), either directly or indirectly, in writing, orally or by inspection of tangible objects. All of the terms of this agreement and all data generated pursuant to this Agreement will be deemed “Confidential”. Confidential Information will not, however, include any information that: (a) was publicly known or is made generally available prior to the time of disclosure by the disclosing party; (b) becomes publicly known or is made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
   2. Protection of Confidential Information. Each party agrees: (a) not to disclose any Confidential Information to any third parties; (b) not to use any Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) to keep the Confidential Information confidential using the same degree of care it uses to protect its own confidential information, as long as it uses at least reasonable care.
   3. Privacy. Advertiser will keep a privacy policy and agrees to comply with its terms with respect to any Users redirected to Advertiser Properties through Shopnomix Listings.
   4. Non-Solicitation. During the Term, each party hereto agrees to not, directly or indirectly, solicit for employment or assist in employing or soliciting for employment any employee or officer of the other party hereto (or attempt to do any of the forgoing), provided that a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the Internet, shall not be construed as a solicitation or inducement for the purposes of this Section.
   5. Good Faith and Non-Adverse Conduct. Each party hereto shall at all times act toward each other in absolute good faith.
5. Representation and Warranties; Compliance
   1. Shopnomix. Shopnomix represents and warrants that it has full power and authority to enter into this Agreement; and that this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms. Shopnomix further represents and warrants to Advertiser that the Shopnomix Products provided to Advertiser do not and will not (a) infringe, violate, or misappropriate any third-party Intellectual Property Right or proprietary right; (b) contain any defects, viruses, worms, time bombs, Trojan horses, cancelbots, or other harmful components, programs, routines, or applications that are designed to disrupt or delay the use and operation of any computer system; (c) promote, constitute or encourage illegal activities such as illicit drug use, give rise to liability, or contain any content in any matter that might be pornographic, libelous, defamatory, hateful, profane, violent, abusive, obscene, or threatening; (d) discriminate against any person on the basis of race, sec, religion, nationality, disability, sexual orientation or age; (e) violate state or federal laws, including privacy or publicity, consumer protection and data protection laws, gambling, alcohol, and child pornography laws; or (f) engage in deceptive practices.
   2. Advertiser. Advertiser represents and warrants that it has full power to enter into this Agreement; and that this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.  Advertiser further represents that (a) Ads and any service or product in Ads complies with applicable law and does not contain any content that infringes any intellectual property, contract or tort right of any third party or material or link that is abusive, obscene, defamatory, harassing, grossly offensive, vulgar, threatening, misleading, false or malicious and does not reflect poorly on or tarnish the reputation of Shopnomix; (b) Ads do not contain any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment; (c) Advertiser will not engage in, or cause others to engage in, spamming, or improper malicious, fraudulent, automated (as determined by Shopnomix) clicking, impressions, inquiries, conversions or other actions. Breach of any of the above representations and warranties may result in immediate termination of this Agreement and/or suspension of your use of Company Products without notice.
   3. Compliance. Shopnomix reserves the right to verify compliance with the above restrictions and limitations. The Advertiser will be responsible for all damages incurred by Shopnomix arising from violation of any of the provisions herein, including the loss of business profits caused by termination of contracts by Shopnomix’s business partners.
6. Term and Termination
   1. The term of the Agreement (‘Term’) shall commence on the Effective Date and, unless terminated or renewed as set forth herein, shall have the term of one (1) year. This Agreement shall be automatically renewed for one year (“Renewal Term”).  An Insertion Order may set forth a specific term or additional termination rights.
   2. Either Party may terminate this Agreement or any Insertion Order hereunder for any reason upon fourteen (14) days prior written notice to the other Party. Company may terminate this Agreement immediately without notice in the event of Advertiser’s material breach of this Agreement or if Advertiser engages in activities that, in the Company’s good faith belief, would expose the Company or its partners to civil or criminal liability or reputational harm.
   3. Upon any termination of this Agreement, all licenses and other rights granted hereunder shall immediately cease, and each Party shall promptly return to the other or destroy any Confidential Information in such Party’s possession.
   4. All provisions of this Agreement relating to ownership of data or intellectual property, confidentiality, indemnification, non-circumvention, non-solicitation, disclaimers of warranties and limitations of liability, as well as any other provisions hereof which, by their nature, are intended to survive the termination of this Agreement, shall do so.  Any payment obligations accruing prior to termination shall also survive.
7. Indemnification
   1. Indemnification. Each Party (the “Indemnifying Party”), at no expense to the other, will indemnify, defend and hold harmless the other party, its affiliates, employees, representatives, agents, successors and assigns (the “Indemnified Party”) from and against any third party claim, demand, action, investigation or other proceeding, debt or liability, including reasonable attorney’s fees, to the extent that (a) it is based upon a material breach of the Indemnifying Party’s representations, warranties or obligations hereunder; (b) it arises out of the gross negligence or willful misconduct of the Indemnifying Party; and (c) it is based upon any allegation that the content, listings, API or other technology used to request or deliver listings, trademark, copyright, patent, or other materials or services provided by the Indemnifying Party hereunder infringe or violate any Intellectual Property Rights of any third party.
   2. Limitation of Liability. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7, EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7 HEREOF, THE SHOPNOMIX PRODUCTS ARE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER PARTY SHALL BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE INTERNET OR ANY OTHER TELECOMMUNICATIONS NETWORK, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION. SHOPNOMIX MAKES NO WARRANTY AS TO THE BENEFIT ADVERTISER WILL OBTAIN FROM ANY CAMPAIGN UNDER THIS AGREEMENT. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, OR INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE FOR LOST PROFITS, LOST REVENUES, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, BREACHES OF CONFIDENTIALITY, OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S LIABILITY HEREUNDER EXCEED THE PAYMENTS RECEIVED BY SHOPNOMIX FROM ADVERTISER IN THE THREE (3) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
8. Miscellaneous
   1. Governing Law; Venue; Attorneys’ Fees.  This Agreement will be governed and constructed, to the extent applicable, by the laws of the United States of America and the State of Delaware, without reference to conflict of laws thereof. Sussex County, Delaware shall serve as proper venue for all disputes arising out of or relating to this Agreement. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees.
   2. Notice. Any notices required or permitted by this Agreement will be given in writing and will be deemed given as of the day they are received either by messenger, delivery service or certified mail, postage prepaid, and (i) if to Shopnomix, addressed to: Shopnomix, ℅ Shopnomix, General Counsel (legal@shopnomix.com); (ii) if to Advertiser, addressed to Advertiser at an address provided by Advertiser to the attention of the General Counsel; or (iii) addressed to the other party at such other address for which such party gives notice hereunder.
   3. Assignment; Binding Effect. This Agreement will be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. Neither party may assign these Terms and Conditions without the prior written consent of the other, except in connection with an assignment to an affiliate or in connection with a merger or sale of all or substantially all of its assets, which shall only require notice to the other party hereto.
   4. Independent Contractors. Shopnomix and Advertiser are independent contractors with respect to each other, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between Shopnomix and Advertiser.
   5. Entire Agreement. This Agreement, including any Insertion Orders hereunder, contains the entire understanding and agreement of the Parties with respect to the subject matter contained herein. This Agreement supersedes all prior understandings and agreements except as expressly otherwise provided. In the event of any inconsistency between this Agreement and an Insertion Order, the Insertion Order shall take precedence over this Agreement. Without limiting the foregoing, any clickwrap or online agreement shall be ineffective to modify the terms of this Agreement, even if assented to by a representative of Company after the execution of this Agreement; any such assent will be deemed a technical necessity to access Advertiser’s services governed by this Agreement and will thus have no binding effect.
   6. Severability. If any provision of this Agreement shall be held or declared to be invalid or unenforceable for any reason by any court of competent jurisdiction, this Agreement will be construed as if that provision had never been contained herein but considering the original intentions of the parties.
   7. Interpretation. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.
   8. Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
   9. Force Majeure. Neither party shall be responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, i.e. riot, war, hostilities, labor disputes,  flood, fire, other natural disaster, terrorism, epidemic, or acts of God.
   10. Non-Disparagement. During the term of this Agreement and thereafter, neither Advertiser nor any affiliated entity, directly or indirectly, may take any action that is intended, or would reasonably be expected, to disparage or harm the reputation or business of Company or any of its affiliates, directors, officers, agents, or employees.
   11. Export Compliance. Notwithstanding any other provision herein to the contrary, Advertiser shall not (or permit any third party to) import, export or re-export, directly or indirectly, the Company Products or any related information to any country to which such import, export or re-export is restricted or prohibited.
   12. Changes to Terms. Shopnomix may, from time to time and at any time, amend these Terms and Conditions in whole or part, in its sole discretion. Shopnomix reserves the right to implement the amendment immediately upon posting, without prior notice. Any changes to these Terms and Conditions will be effective as of the date indicated at the top of these Terms and Conditions. By continuing to use the Company Products, you will be deemed to have agreed to such changes.