MASTER ADVERTISING TERMS
By agreeing to these Master Advertising Terms (“Terms”), you, the client or on behalf of the client (“Client”), represent and warrant that you have full legal power and authority to enter into these Terms, to perform the obligations hereunder, and authorize and agree to pay the fee payments as set forth in each Purchase Order, as defined below. Any capitalized terms used but not defined in these Terms shall have the respective meanings ascribed to them in the Purchase Order.
- Ad Programs
These Terms apply to the advertising programs and services (“Ad Programs”) that the Client purchases from Foodporn from time to time in connection with Foodporn’s websites, mobile applications, other third-party properties, or as otherwise agreed to by the parties (collectively the “Site”).
Ad Programs purchased will be set forth in an online order form, in a purchase order (written or digital), or other expression of agreement (e.g. checking a box, email authorization) that identifies the Ad Programs purchased, start and end date, applicable fees, advertising budget and a commitment period, if applicable (“Commitment Period”), and other applicable terms (collectively the “Purchase Order”). Each agreed upon Purchase Order is governed by and incorporated into these Terms (collectively the “Advertising Agreement”). Foodporn, at its sole discretion, may at any time replace features associated with any Ad Program with features of substantially similar value. The Ad Programs are provided to the Client in Victoria, Australia.
For Ad Programs purchased on a cost-per-click basis, a “click” is each instance, at Foodporn’s sole discretion, that a user acts on, or in connection with, an “ad impression”, such as by clicking or tapping on it, requesting information, quotes, services, reservations or appointments, or took any other action that delivers a connection to the Client. An “ad impression” is any advertisement of content promoting the Client’s business on the Site, or mechanism for users to contact or otherwise interact with the Client’s business, as determined by Foodporn, at its sole discretion. Ad impressions are dynamically paced based on performance metrics and other factors, and their delivery is intended, but not guaranteed (unless otherwise indicated in a Purchase Order), to fulfil the Client’s maximum specified budget. For ad impressions on Foodporn-branded properties, the price-per-click is determined by automated auction mechanics among eligible advertisers based on predicted click-through rates, price, relevance, competition, and other factors, as determined and administered by Foodporn, and only up to the maximum bid price if one is indicated on the Purchase Order, with the intention of fulfilling the maximum monthly budget set forth in the Purchase Order. For ad impressions displayed on non-Foodporn-branded properties, the price-per-click is determined based on a number of factors intended to enhance the quality and number of clicks that the Client receives from such properties. For Ad Programs purchased on a cost-per-ad impression basis, the Client is charged for each unit of 1,000 ad impressions up to a maximum specified budget. For Ad Programs purchased on a cost-per-lead basis, a “lead” is each instance in which Foodporn, at its sole discretion, records that a user acted on, or in connection with, a mechanism to contact or otherwise interact with the Client’s business. Ad Programs, whether purchased individually or bundled include:
Branded Profiles: This program provides the Client with access to additional features on the Site, in connection with its activated business profile page(s), such as listing updates, call to action, slideshow, and account support.
Business Highlights: This program enables the Client to choose from a list of attributes about its business that will be promoted on the Site, in connection with the Client’s activated profile page(s).
Call Tracking: This feature replaces the Client’s phone number displayed on the Site with a temporary local or toll-free tracking phone number. If available, the Client is able to track how many calls originate from the Site, and the Client may turn off such call tracking at any time in its business account. Tracking numbers provided by Foodporn are the property of Foodporn or its service providers and cannot be retained by the Client. Local numbers are based on availability and Foodporn reserves the right to substitute toll free tracking numbers. When call tracking is made available, the Client shall take commercially reasonable measures to limit access to the recorded call files to employees who have a need to access the files, to use such recordings for internal purposes only, and to not obtain or attempt to obtain any personally identifiable information from the caller without consent of the caller.
Directed Calls: This feature allows the Client to direct any mobile calls made from the Client’s Foodporn business page on the Foodporn mobile application to two separate phone numbers provided by the Client for the purposes of a specified call to action relevant to the Client’s business (as determined by Foodporn) and general questions.
Enhanced Profiles: This program provides the Client with access to additional features on the Site in connection with its activated business profile page(s), such as listing updates, call to action, slideshow, competitor ad removal, and account support.
Homepage Seasonal Spotlight Ads: This program provides the Client with the ability to promote itself on the Site with prominently placed, seasonally related ad impressions delivered in connection with the Site. Foodporn will make commercially reasonable efforts to deliver a guaranteed number of ad impressions for a fixed fee. In the event Foodporn delivers more ad impressions than the guaranteed amount, such ad impressions will be at no cost to the Client.
Logo: This feature allows Foodporn to promote the Client’s logo on its business page(s) and other potentially relevant areas on the Site.
Nearby Jobs: This program enables the Client to see a dynamic feed of job quote requests on the Site, from Foodporn users based on the Client’s location, category and other factors.
Official Partner Integration: This feature allows the Client to submit suggested edits to listing information on its business page(s) on the Site using tools made available by a third party enrolled in Foodporn’s Official Partner program, as specified in the Client’s Purchase Order. This feature is only available while: (a) the Client has an active Branded Profile or Enhanced Profile program, and (b) the Foodporn Official Partner remains enrolled in Foodporn’s Official Partner program. By allowing Foodporn’s partner to update your business listing data on Foodporn, you acknowledge that you remain responsible for such data and that Foodporn is not responsible for the accuracy or integrity of your data.
Portfolio: This program provides the Client with the ability to publish information to the Site, such as photos and descriptions about work or services that the Client has performed for its customers. When enrolled, portfolio projects must be accurate representations of work that the Client has performed for its customers.
Showcase Ads: This program provides the Client with the opportunity to provide custom ad materials to be used in connection with the Client’s Foodporn Ads program on the Site, highlighting limited time offers, new products or promotions.
Third Party Attribution Service: This feature allows the Client to access the attribution services provided by the Foodporn Attribution Partner specified in the Purchase Order. Foodporn Attribution Partners use online-to-offline attribution measurement technology to assist in measuring the effectiveness of the Client’s Ad Programs. The Client may be required to provide certain transactional or store-visit data to its Foodporn Attribution Partner under separate agreement between the Client and such Foodporn Attribution Partner (“Client Data”). The Foodporn Attribution Partner may map Client Data to ad-related data provided by Foodporn and issue a de-identified report to both the Client and Foodporn which may be used by each to determine and improve the effectiveness of the Client’s Ad Programs and their respective business operations. The Third Party Attribution feature is only available so long as: (i) a valid agreement remains in effect between the applicable Foodporn Attribution Partner and each of the Client and Foodporn, respectively, and (ii) the Client meets the study eligibility threshold required to perform such attribution services.
Upgrade Package: This bundled program provides the Client with access to Business Highlights, Call to Action, Competitor Ad Removal, Logo, Portfolio (if eligible), Slideshow and Foodporn Connect.
Verified License: This program allows Foodporn to reference and promote an eligible Client’s trade license on the Site, provided the license meets Foodporn’s eligibility and verification requirements. When enrolled, the Client is responsible for notifying Foodporn immediately of any changes in the status of its trade license (such as renewal, revocation, and cancellation).
Foodporn Ads: This program provides the Client with the ability to advertise on the Site on a cost-per-click basis for ad impressions promoting the Client’s business up to a maximum specified budget.
Foodporn Ads Plus: This feature provides Foodporn with the ability to determine the optimal allocation of budgets between Foodporn Ads and Foodporn Audiences.
Foodporn Audience Network. This feature provides the Client with the ability to obtain additional exposure via syndication through Foodporn third-party properties.
Foodporn Audiences: This program provides the Client with the ability to advertise and promote the Client’s business on non-Foodporn branded properties on a cost-per-click basis or a cost-per-ad impression basis up to a maximum specified budget.
Foodporn Connect: This program allows the Client to publish promotional content to the Site (including on the Client’s business page(s)). Such promotional content may also be included in marketing communications to Foodporn users and Foodporn may also incorporate the Client’s Foodporn Connect posts into ad impressions if the Client has an active Foodporn Ads program.
- Fees and Payment
The Client will pay Foodporn the fees specified in each Purchase Order. The fees are fixed for the duration of any Commitment Period specified in each Purchase Order, if applicable. If the Client is not subject to a Commitment Period as specified in a Purchase Order, Foodporn may modify the fees upon fifteen (15) days’ prior notice via the email address provided by the Client to Foodporn. All fees are net of any excise, sales, use, value added or other taxes, assessments, tariffs, fines, penalties or duties on the purchase of Ad Programs (collectively, “Taxes”). The Client is responsible for paying all applicable Taxes, unless Client provides Foodporn with a valid tax exemption certificate authorized by the appropriate taxing authority. Client will indemnify, defend, and hold Foodporn harmless from and against any claim arising out of Client’s failure to pay Taxes.
Payments are due as set forth in the applicable Purchase Order. Foodporn reserves the right in the case of any delinquency of the Client’s payments or any impairment of the Client’s creditworthiness, to change the requirements as to terms of payment under this Advertising Agreement. Notwithstanding anything to the contrary, failure to pay for any amounts due hereunder after receiving a late payment notice from Foodporn may result in Foodporn, in its sole discretion, and without limiting its other rights and remedies, suspending the applicable Ad Programs purchased or terminating the Advertising Agreement. If the Client’s payment method fails or the Client’s account is past due, Foodporn may collect past due amounts using other collection mechanisms, and the Client agrees to pay all expenses associated with such collection, including reasonable attorneys’ fees. Undisputed past due amounts will accrue interest at 1% per month or the lawful maximum, whichever is less.
THE CLIENT AUTHORIZES FOODPORN TO USE ANY PAYMENT INSTRUMENT AND RELATED PAYMENT INFORMATION PROVIDED BY THE CLIENT OR THE CLIENT’S PAYMENT INSTRUMENT PROVIDER TO PAY ALL FEES DUE HEREUNDER, INCLUDING BY AUTOMATICALLY CHARGING THE CLIENT ON A RECURRING BASIS. THE CLIENT REPRESENTS THAT THE CLIENT IS AUTHORIZED TO INCUR CHARGES AGAINST SUCH PAYMENT INSTRUMENTS, INCLUDING PLACING A TEMPORARY AUTHORIZATION TO VERIFY PAYMENT INFORMATION. THE CLIENT MAY NOT CHANGE ITS FORM OF PAYMENT UNLESS ALL AMOUNTS DUE UNDER THE TERMS HAVE BEEN PAID IN FULL OR AS OTHERWISE AGREED TO BY THE PARTIES IN WRITING.
III. Representations and Warranties
Each party represents and warrants to the other that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized; all contact and entity information is complete, correct and current, and the execution and delivery of the Terms; and the performance of the transactions contemplated hereby, are within its corporate powers, and have been duly authorized by all necessary corporate action.
The Client represents and warrants to Foodporn that: (a) any information, materials, or content that the Client provides in connection with the Ad Programs (collectively the “Advertising Materials”) will be true, complete and correct, (b) the Client has all necessary rights and permissions to allow Foodporn to use and display the Advertising Materials, (c) the Advertising Materials do not contain any content that violates Foodporn’s Content Guidelines (available on the Site) (the “Content Guidelines”) or that is otherwise unlawful, defamatory or obscene, or infringes or violates any third‐party rights (including any intellectual property rights or privacy or publicity rights), or may encourage a criminal offense or otherwise give rise to civil liability, (d) the Client will comply with all applicable laws and regulations in connection with its use of the Site, including, but not limited to, laws and regulations relating to privacy, sweepstakes, coupons and promotions. The Client agrees and acknowledges that the Client is responsible for the final review of any Advertising Materials, even if Foodporn provided assistance in its development or implementation. In the event the Client requests Foodporn’s assistance in connection with any Ad Program, the Client consents to the actions that Foodporn performs on its behalf and retains sole responsibility for such assisted use. Notwithstanding anything to the contrary, Foodporn reserves the right, at its sole discretion, to remove or edit any Advertising Materials, business page attributes and any and all information in connection with the Ad Programs or the Site that Foodporn reasonably believes may be inaccurate, deceptive, violates applicable laws, or otherwise does not comply with Content Guidelines or specifications.
The Client further represents and warrants to Foodporn that the Client will not, and will not authorize or induce any other party, to: (a) generate automated, fraudulent or otherwise invalid ad impressions, inquiries, conversions, ad clicks or other actions, (b) use any automated means or form of scraping or data extraction to access, query or otherwise collect Foodporn content and reviews from Foodporn, except as expressly permitted by Foodporn, or (c) use any Foodporn copyrights, trademarks, trade secrets or other intellectual property rights laws, and all similar or equivalent rights or forms of protection (“Intellectual Property”) in any manner without Foodporn’s prior written consent. Nothing contained in these Terms shall be construed as granting the Client or any third party any right, title, or interest in or to any Foodporn Intellectual Property. All rights not expressly granted to the Client hereunder are reserved by Foodporn.
When applicable to the Ad Programs purchased, the Client further represents and warrants to Foodporn that: (a) the Client is responsible for notifying Foodporn immediately of any changes in the status of its trade license (such as renewal, revocation, and cancellation) and that anyone providing services to consumers on behalf of the Client has and will continue to have the required trade license(s) to provide such services, (b) portfolio projects are accurate representations of work that the Client has performed for its customers, (c) when call tracking is made available, the Client shall take commercially reasonable measures to limit access to the recorded call files to employees who have a need to access the files, to use such recordings for internal purposes only, and to not obtain or attempt to obtain any personally identifiable information from the caller without consent of the caller.
- Information About and Use of Foodporn
The Client understands and acknowledges that Foodporn allows consumers to post content about the Client’s business, including photos, ratings, and reviews. The Client understands and acknowledges that Foodporn employs automated software in an effort to showcase the most reliable and useful reviews while displaying other reviews less prominently (“Recommendation Software”). The Client understands and acknowledges that while Foodporn uses its Recommendation Software to identify potentially less helpful reviews, the Recommendation Software may sometimes suppress legitimate reviews or fail to detect illegitimate reviews. The Client understands and acknowledges that any purchase of the Ad Programs from Foodporn will not influence the Recommendation Software or otherwise allow or enable the Client, directly or indirectly, to alter reviews or impact whether, where, or how reviews appear on Foodporn.
From time to time, Foodporn may need to test improvements to the Site, which could impact the Client’s Ad Programs. The Client authorizes Foodporn to periodically conduct limited tests that may affect the Client’s Ad Programs in an effort to improve Foodporn’s targeting and delivery systems, including changes to ad formatting, quality, ranking, performance, pricing, and auction adjustments. The scheduling and delivery of Ad Programs is subject to availability and may not be continuous.
- Term, Termination and Program Changes
These Terms become effective between the parties as of the date an Ad Program is purchased through the Site, the Client executes a Purchase Order by signature (written or digital), or other expression of agreement (e.g. checking a box, email authorization) (the “Effective Date”). Each Purchase Order will be deemed effective as of the Effective Date and will remain in effect until terminated in accordance with this Section V or the terms of a Purchase Order if the Purchase Order specifies an end date. If a Purchase Order specifies that it will automatically renew, the Purchase Order will renew on a month-to-month basis after the end of the Term (as defined therein) until notice of termination is provided by the Client in accordance with the subsections below.
Notice of Termination Process: If the Client purchased Ad Programs via a self-service tool through the Site, the Client may terminate the Ad Programs at any time by selecting “End Campaign” or other similar feature via the Foodporn business account. If the Client purchased Ad Programs via a Purchase Order (written or digital), the Client may terminate subject to the termination process as set forth in the applicable Purchase Order via written notice to Foodporn’s Customer Success team via email to [email protected]. Terminations are effective as soon as possible, but no later than 11:59 pm PT on the effective day of termination that the Client terminates such Ad Programs. For Purchase Orders that do not include a termination process, the Client may terminate on any day of the month by providing thirty (30) days’ written notice to Foodporn’s Customer Success team via email to [email protected] and such terminations are effective at the end of the thirty (30) day notice period. For fees paid in arrears, Foodporn will bill the Client for fees incurred during the time period between the Client’s last billing cycle through the effective date of termination and will reimburse the Client for any fees that were prepaid for Ad Programs to be rendered after the effective date of such termination. If the Client purchased Ad Programs with a Commitment Period (as indicated in a Purchase Order) and an Early Termination Fee applies, the Client will pay the Early Termination Fee as set forth in the Purchase Order.
EARLY TERMINATION FEE: IF INDICATED ON A PURCHASE ORDER, THE CLIENT MAY BE SUBJECT TO AN EARLY TERMINATION FEE. IN THE EVENT THAT THE CLIENT TERMINATES SUCH PURCHASE ORDER BEFORE THE END OF A COMMITMENT PERIOD, THE CLIENT MUST PAY SUCH EARLY TERMINATION FEE WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE OF TERMINATION. THE PARTIES ACKNOWLEDGE AND AGREE THAT SUCH EARLY TERMINATION FEE IS A REASONABLE ESTIMATE OF THE ACTUAL DAMAGES THAT WOULD FLOW FROM AN EARLY TERMINATION BY THE CLIENT BASED ON THE DISCOUNTED PRICING OFFERED BY FOODPORN IN EXCHANGE FOR THE COMMITMENT PERIOD, AS WELL AS THE UP-FRONT SALES, SETUP, AND OPPORTUNITY COSTS THAT FOODPORN BEARS IN CONNECTION WITH THE CLIENT’S PURCHASE ORDERS AND OTHER DAMAGES.
Notwithstanding the foregoing, Foodporn may terminate any Purchase Order or the Advertising Agreement (which also terminates any and all underlying Purchase Orders) at any time for any or no reason without liability, effective immediately, by providing written notice to the Client, including via the email address provided by the Client to Foodporn. In the event of such termination, the Client will pay all unpaid fees incurred through the date of termination within thirty (30) days of receipt of such notice of termination, and Foodporn will reimburse any fees that were prepaid for Ad Programs to be rendered after the date of such termination.
Program Changes: If the Client wants to make changes to an Ad Program purchased via its business account on Foodporn, the Client may log in and select “Edit Program” or other similar then-current option. If the Client purchased a program via a Purchase Order (written or digital), the Client may request a change to its Ad Program via email to [email protected] (“Program Change”), subject to any restrictions in the applicable Purchase Order. To process the Program Change request, the Client must sign and return all Program Change documents provided to the Client by Foodporn in response to the Client’s request. Once Foodporn has received all necessary Program Change documents, the Program Change will take effect on the first day of the next billing cycle.
- FOODPORN’S DISCLAIMER OF WARRANTIES
THE CLIENT ACKNOWLEDGES AND AGREES THAT AD PROGRAMS ARE PROVIDED TO THE CLIENT ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. FOODPORN MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE AD PROGRAMS AND EXPRESSLY DISCLAIMS THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. FURTHERMORE, TO THE FULLEST EXTENT PERMITTED BY LAW, FOODPORN SPECIFICALLY DISCLAIMS ALL WARRANTIES AND GUARANTEES REGARDING: (I) THE PERFORMANCE, QUALITY AND RESULTS OF THE AD PROGRAMS, INCLUDING AD CLICK RATES, CONVERSIONS, PACING AND ANY USER-GENERATED CONTENT THAT APPEARS ON THE SITE OR IN THE CLIENT’S AD PROGRAMS, (II) THE ACCURACY OF THE NON-PAYMENT-RELATED INFORMATION AND METRICS THAT FOODPORN PROVIDES IN CONNECTION WITH THE SITE OR AD PROGRAMS (E.G., TRAFFIC, VIEWS, VISITORS, USERS, DEMOGRAPHICS, AND BEHAVIORAL INFORMATION ABOUT USERS), AND (III) THE PLACEMENT, CONTENT, PROMOTIONAL VALUE, QUALITY, TIMING, OR NUMBER OF AD IMPRESSIONS. FOODPORN SHALL NOT BE LIABLE FOR NON-PERFORMANCE DUE TO CAUSES BEYOND ITS REASONABLE CONTROL. WHILE FOODPORN MAY TRY TO TARGET AD IMPRESSIONS TO PARTICULAR USERS, TYPES OF USERS, USER LOCATIONS, USER QUERIES, OR OTHER USER BEHAVIORS, FOODPORN MAY NOT BE ABLE TO ACHIEVE A CLIENT’S SPECIFIC EXPECTATION OF ACCURATE AD TARGETING.
VII. LIMITATIONS OF LIABILITY
(a) THIRD PARTY ACTIVITY. FOODPORN HAS SYSTEMS THAT ATTEMPT TO DETECT AND FILTER CERTAIN CLICK ACTIVITY. NONETHELESS, THIRD PARTIES MAY INADVERTENTLY OR FOR FRAUDULENT OR IMPROPER PURPOSES GENERATE AD IMPRESSIONS, CALLS OR CLICKS (“THIRD-PARTY ACTIVITY”), WHICH MAY IMPACT THE FEES THE CLIENT PAYS FOODPORN AND THE PERCEIVED EFFECTIVENESS OF AD PROGRAMS. THE CLIENT ACCEPTS THE RISK OF THIRD-PARTY ACTIVITY WITHOUT LIABILITY TO FOODPORN. AS SUCH, THE PARTIES AGREE THAT FOODPORN HAS NO LIABILITY FOR CLAIMS ARISING FROM OR IN CONNECTION WITH THIRD-PARTY ACTIVITY EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY LAW, IN WHICH CASE FOODPORN’S MAXIMUM LIABILITY AND THE CLIENT’S EXCLUSIVE REMEDY IS A REFUND IN THE FORM OF REPLACEMENT ADVERTISING SERVICES ON THE SITE EQUAL TO THE APPROXIMATE VALUE OF SUCH THIRD-PARTY ACTIVITY.
(b) FOODPORN ACTIVITY. EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN THE EVENT FOODPORN ITSELF INADVERTENTLY GENERATES AD IMPRESSIONS OR CLICKS, FOODPORN’S MAXIMUM LIABILITY AND THE CLIENT’S EXCLUSIVE REMEDY IS A REFUND IN THE FORM OF REPLACEMENT ADVERTISING SERVICES EQUAL TO THE NUMBER OF SUCH INVALID AD IMPRESSIONS OR CLICKS.
(c) UNDER-DELIVERY OF AD IMPRESSIONS. EXCEPT TO THE EXTENT PROHIBITED BY LAW, FOODPORN’S MAXIMUM LIABILITY AND THE CLIENT’S EXCLUSIVE REMEDY IN THE EVENT OF ANY UNDER-DELIVERY OF AD IMPRESSIONS IN ANY GIVEN MONTH IS, AT FOODPORN’S SOLE DISCRETION, TO EITHER: (I) DELIVER THE SHORTFALL OF AD IMPRESSIONS IN SUBSEQUENT MONTHS, OR (II) PROVIDE A REFUND OF THE UNDER-DELIVERED AMOUNT.
(d) OTHER CLAIMS. EXCEPT TO THE EXTENT PROHIBITED BY LAW, FOR ALL OTHER CLAIMS OR DAMAGES ARISING FROM, RELATED TO, OR IN CONNECTION WITH THIS ADVERTISING AGREEMENT, A PURCHASE ORDER, THE AD PROGRAMS, THE SITE, OR THESE TERMS THAT ARE NOT EXPRESSLY ADDRESSED IN SECTION VII (a), (b) or (c) ABOVE, FOODPORN’S (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, AND EMPLOYEES) MAXIMUM AGGREGATE LIABILITY AND CLIENT’S EXCLUSIVE AGGREGATE REMEDY IS THE GREATER OF THE TOTAL FEES PAYABLE TO FOODPORN HEREUNDER DURING THE SPECIFIED PURCHASE ORDER TERM GIVING RISE TO THE CLAIM OR THE AMOUNTS PAID TO FOODPORN UNDER THIS ADVERTISING AGREEMENT IN THE PRIOR TWELVE (12) MONTH PERIOD FROM THE DATE THAT THE LIABILITY FIRST AROSE.
(e) NO INDIRECT DAMAGES. OTHER THAN AN EARLY TERMINATION FEE INDICATED IN A PURCHASE ORDER, NEITHER PARTY NOR ITS AFFILIATES, DIRECTORS, OFFICERS, AND EMPLOYEES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS OR REVENUE, OR INTERRUPTION OF BUSINESS) ARISING FROM, RELATED TO, OR IN CONNECTION WITH THIS ADVERTISING AGREEMENT, A PURCHASE ORDER, THE AD PROGRAMS, THE SITE, OR THESE TERMS, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION VII SHALL APPLY REGARDLESS OF WHETHER THE LIABILITY ARISES OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY.
VIII. Indemnification
The Client will indemnify, defend, and hold Foodporn and its officers, directors, agents, affiliates, and employees harmless from and against any and all third-party claims, actions, losses, damages, liabilities, costs, and expenses (including but not limited to attorneys’ fees and court costs) (collectively a “Third Party Claim”) arising out of or in connection with: (i) the Advertising Materials or any instructions or directions provided by the Client to Foodporn in connection with the Ad Programs, and (ii) the Client’s breach of this Advertising Agreement. Foodporn will notify the Client promptly of any Third Party Claim for which it seeks indemnification and will permit the Client to control the defense of such Third Party Claim with counsel chosen by the Client; provided, that the Client will not enter into any settlement that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of Foodporn without Foodporn’s prior written consent.
- Choice of Law and Arbitration
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
(a) Any controversy or claim arising out of or relating to this Advertising Agreement, or the breach thereof (“Claim“), shall be settled by arbitration administered by the Australian Arbitration Association in accordance with any applicable Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will issue a ruling in writing and will detail all findings of fact and law upon which the ruling was made. The arbitrator will not have the power to commit errors of law or legal reasoning, and the ruling may be vacated or corrected through judicial review by a court of competent jurisdiction under the appropriate Victorian arbitration provisions. Claims shall be heard by a single arbitrator. Arbitrations will be held in Melbourne, Australia, but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitration shall be governed by the laws of Victoria. The award of the arbitrators shall be accompanied by a reasoned opinion. The prevailing party shall be entitled to an award of reasonable attorney fees for any action under these Terms.
(b) NOTWITHSTANDING THE FOREGOING, FOR ANY CLAIM THAT IS NOT SUBJECT TO ARBITRATION, THE CLIENT AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED MELBOURNE, VICTORIA, AUSTRALIA, WHICH IS HEREBY DEEMED THE PLACE OF PERFORMANCE OF THIS ADVERTISING AGREEMENT.
(c) THE CLIENT AND FOODPORN AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH THE CLIENT AND FOODPORN AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THAT THIS SUBSECTION (c), AND THIS SUBSECTION (c) IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
- Miscellaneous
(a) Any of the Client’s terms or conditions that are in addition to or different from those contained in or added by way of interlineation to the Advertising Agreement, including any purchase order or insertion order, that are not separately expressly agreed to in writing by both parties are deemed material and are hereby objected to and deemed void. No conditions, printed or otherwise, appearing on other contracts, orders or copy instructions that conflict with, vary, or add to this Advertising Agreement will be binding on Foodporn, and any conflicting or additional terms contained in any other documents or oral discussions are void. The Advertising Agreement, together with Foodporn’s Terms of Service (available on the Site) (the “Terms of Service”) embodies the entire and exclusive agreement between the parties respecting the subject matter herein, and supersedes any and all prior related oral, emailed or written representations and agreements between the parties. To the extent that Terms of Service conflict with or materially deviate from this Advertising Agreement, the terms of this Advertising Agreement shall govern and prevail. No statements or promises by either party have been relied upon in entering into the Advertising Agreement, except as expressly set forth herein. Each party shall not disclose the terms or conditions of the Advertising Agreement to any third-party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation.
(b) Anyone agreeing to the Advertising Agreement on behalf of Client represents and warrants that it has full legal power, permission and authority to enter into the Advertising Agreement, perform its obligations hereunder, and authorize the fee payments set forth in the Purchase Order(s).
(c) Notices under the Advertising Agreement must be in writing and sent via the following methods: Foodporn may provide effective notice to the Client by registered or certified mail, commercial courier or by sending an email to the email address specified in the Client information section of the Purchase Order, and the notice will be deemed received upon receipt by the Client, but in any event no later than two (2) days after dispatch by Foodporn. Any notices sent by the Client to Foodporn must be sent via registered or certified mail, or commercial courier to its General Counsel at Foodporn, PO Box 361, Carlton North VIC AUSTRALIA 3054 and will be deemed received when such notice is received by Foodporn, though notices of termination must be sent in accordance with Section V above.
(d) The Client will not issue any press release or make public statements about its relationship with Foodporn or its affiliates without Foodporn’s prior written consent. The Client grants Foodporn permission to: (a) list the Client as a representative client in Foodporn’s client lists, advertising, publicity and marketing materials, (b) display the Client’s Advertising Materials and logo in Foodporn’s online portfolios or other marketing materials, (c) use the Client’s logo in connection with its Ad Programs, and (d) make general reference to the results of the Ad Programs purchased by the Client. The Client agrees that Foodporn may create portfolio projects on the Client’s behalf using photos and other information displayed online in connection with the Client’s business, including from the Client’s Foodporn business listing page or business website and to display the Client’s logo on its business page(s) and other potentially relevant areas of the Site to the extent authorized under this Advertising Agreement.
(e) Any conflict among the Terms and Purchase Orders will be resolved in favour of the Purchase Order(s) (most recent first, if applicable), then the Terms. These Terms may be amended or modified by Foodporn (“Modifications”) and, with the exception of minor changes to the Terms which take effect immediately upon posting by Foodporn, such Modifications will go into effect on the fifteenth (15th) day after Foodporn sends notice of such Modifications to the email address associated with the Client’s account, unless the Client objects to the Modifications within the fifteen (15) day notice period, in which case such changes will not go into effect on such date, and Foodporn will have the option of terminating the Purchase Order and/or Advertising Agreement, and in such case, any applicable Early Termination Fees will not apply. A Purchase Order may only be amended or modified as agreed upon in writing by the parties, except as otherwise provided herein. No provision in the Advertising Agreement may be waived, except pursuant to a writing executed by the party against whom the waiver is sought to be enforced. The Client may not assign any rights or obligations under the Advertising Agreement without Foodporn’s prior consent, and any purported assignment by the Client shall be void. If any provision of the Advertising Agreement is held to be invalid or unenforceable, the parties will either substitute for the affected provision a valid or enforceable provision that approximates the intent and economic effect of the affected provision or strike such provision without further prejudice to the Advertising Agreement such that all remaining provisions of the Advertising Agreement shall remain in full force and effect. Sections VI – X of these Terms will survive any termination of the Advertising Agreement.
(f) The Client agrees that any calls with Foodporn, whether or not initiated by Foodporn, may be monitored and recorded for quality and training purposes.
(g) The Client agrees that it will be bound by the Foodporn’s Terms of Use, Privacy Policy, Cookies Policy and Code of Conduct.
(h) The Client may be eligible to receive special Ad Program packages due to an agreement between Foodporn and a Primary Company. For purposes of this Advertising Agreement, the term “Primary Company” is used for convenience and may include any franchisor, dealer, affiliate, parent company, agent or other party purchasing Ad Programs on behalf of the Client, as applicable. Notwithstanding anything to the contrary, the Client’s Purchase Order may run concurrently with Primary Company’s purchase of a Foodporn Ad Program on the Client’s behalf (or any modifications thereto) and Foodporn may modify the Client’s Ad Programs and/or the Client’s fees payable hereunder in connection therewith. For the avoidance of doubt, Foodporn will not adjust the fees payable in the applicable Client Purchase Order pursuant to the foregoing sentence in excess of such amount listed therein without prior notice or as otherwise agreed to by the parties in writing. If the Primary Company cancels or suspends its agreement with Foodporn, Foodporn may adjust the fees in the applicable Client Purchase Order to the then current pricing for the relevant Ad Programs and/or modify Client’s Ad Programs to reflect such programs/pricing the Client received prior to Primary Company’s purchase of a Foodporn Ad Program on the Client’s behalf. The Client agrees that if the Primary Company has purchased a Foodporn Ad Program for the Client’s business, the Primary Company may access and provide content for the Client’s business listings. At Foodporn’s sole discretion, in the event that Foodporn receives conflicting direction or content with respect to the Client’s listing, including applicable Ad Program purchases or changes, the Primary Company’s direction and content shall control. For the purpose of clarity, this access does not grant either party any control over the reviews displayed on the Client’s listing or the application of Terms of Service and Content Guidelines. The Primary Company contact information is available from Foodporn upon request. Invoices for payment shall be sent to and paid by Primary Company unless otherwise stated in the applicable Purchase Order. If timely payment is not received from Primary Company, Foodporn will invoice the Client and the Client will be liable for payment upon receipt.
Last updated on September 10, 2021.
[END OF TERMS]
Leave a Reply