Spencer Advertiser Agreement
Effective as of December 20, 2023
At Spencer, our goal is to bring publishers and advertisers together to create efficient and effective sponsored content campaigns that can help you grow the customer base for your product or business.
This Spencer Marketing Advertiser Agreement ("Advertiser Agreement") is entered into by and between you ("Advertiser") and Clipse SAS ("Spencer"), on the date that Advertiser clicks to accept this Agreement (the "Effective Date") by and through the Platform (as defined below). This Advertiser Agreement sets forth the parties’ respective rights and obligations concerning the Campaigns (as defined below) and Advertiser’s access to and use of the services and software provided by Spencer. This Advertiser Agreement incorporates by reference Spencer’s Privacy Policy (located at www.meet-spencer.com/rgpd) as if fully stated herein, and together with any insertion order(s) agreed to by Spencer and the Advertiser, are collectively the "Agreement". In the event of a conflict between an insertion order and the Advertiser Agreement or Privacy Policy, the insertion order shall control.
1. Platform; Services.
Pursuant to the terms of the Agreement, Spencer grants Advertiser access to Spencer’s proprietary Platform. For purposes of the Agreement, "Platform" means, collectively, Spencer’s marketplace for buying and selling email sponsorships and other marketing sponsorships and Spencer’s ad network. The Platform enables Advertiser to search and obtain the services of prospective publishers ("Publishers") to participate in Advertiser-sponsored marketing campaigns whereby such Publishers agree to distribute certain Creative (as defined below) provided by Advertiser via email ("Publisher Email"), blog post, or website promotion, on a fixed fee basis (the "Campaigns"). Publishers that utilize the Platform have Publisher profile pages and shall be permitted to post information pertaining to their proprietary email subscriber list or marketing database(s) (collectively, "Publisher Subscriber List"), information pertaining to their blog or website, and the fixed fee rates that each such Publisher would like to charge to prospective Advertisers in connection with Campaigns, in order to provide Advertiser with such information. The descriptions of the Publisher Subscriber Lists are not guarantees of Campaign performance. Where Advertiser selects a Publisher for participation in a given Campaign, that Publisher may include Advertiser Creative in Publisher Email either as an ad placement or as a dedicated email on behalf of that Advertiser, or may include Creative within blog posts or promotions on Publisher’s website based on the Campaign type (the "Publisher Services"). Advertiser acknowledges and agrees that Spencer: (a) operates the Platform as a neutral party; and (b) shall not, under any circumstances, be responsible or liable, in any way under any circumstances, for any claim associated with, arising out of or related to: (i) the acts or omissions of any Publishers; and/or (ii) the Publisher Emails, Publisher Services and/or Publisher Subscriber List.
2. Sub-Marketers.
For purposes of the Agreement, any reference to Advertiser shall include any and all in-house and/or third party marketing agents, partners, affiliates and/or advertisers providing services to and/or on behalf of Advertiser in connection with the Services contemplated hereunder (collectively, "Sub-Marketers"). Advertiser shall remain, at all times, responsible and fully liable for any and all acts and/or omissions of its Sub-Marketers, and for ensuring that each such Sub-Marketer complies with any and all obligations, restrictions and other terms applicable to Advertiser under the Agreement.
3. Creative.
Advertiser shall develop all aspects of the marketing creative, including copy, images, graphics, banner ads, and links to be used in connection with the Campaigns (collectively, the "Creative"). The parties understand and agree that Advertiser is the sole owner of any and all intellectual property rights associated with any Creative. If Spencer or its Publishers make any changes to the Creative, Advertiser will have final approval of the edited Creative before it is included in a Campaign. Spencer and its Publishers reserve the right, in their sole discretion and without liability, to: (a) change the Creative specifications for a Campaign at any time; and (b) to reject, omit, exclude or terminate any Creative at any time in its reasonable discretion, upon notice to Advertiser, whether or not such Creative was previously acknowledged, accepted or published. Such reasons for rejection, omission or exclusion of Creative include, but are not limited to, where Spencer determines, in its sole discretion, that the Creative, including the applicable products and/or services promoted by such Creative ("Advertiser Products"), and any websites linked to from such Creative: (i) are in breach of the Agreement; (ii) are in violation of any applicable law, rule, regulation or other judicial or administrative order; or (iii) may tend to bring disparagement, ridicule or scorn upon Spencer and/or its Publishers. A Publisher also has the right to cancel or reject a Campaign for any reason.
4. Payment; Tracking and Reporting.
(a) Tracking. The fixed fee rate for each Campaign shall be established by the Publishers and/or Spencer. Unless otherwise approved in writing by Spencer, Creative associated with a Campaign must include, in unaltered form, a unique tracking code provided by Spencer to Advertiser ("Tracking Codes"). Advertiser may not modify, circumvent, impair, disable or otherwise interfere with any Tracking Codes and/or other technology and/or methodology required or made available by Spencer to be used in connection with any and all Creative or Campaigns. All determinations made by Spencer in connection with the Campaigns and any associated fees invoiced to Advertiser shall be final and binding on Advertiser. Notwithstanding the foregoing, Spencer’s services do not involve investigating or resolving any claim or dispute involving Advertiser and any Publisher or other third party.
(b) Reporting. Regularly updated reporting associated with all Campaigns shall be made available to Advertiser via the Platform.
(c) Payment. Payment for each Campaign is due from Advertiser at the time of Campaign booking, unless the Advertiser is approved for invoicing by Spencer. If an Advertiser’s account is eligible for invoicing, Spencer will invoice Advertiser promptly after booking a Campaign. Payment will be due to Spencer within thirty (30) days of the invoice date. If an Advertiser requests a new invoice, payment will be due based on the original invoice date. If payment is not made in a timely manner, Spencer may, at its option, immediately terminate the Agreement. Spencer will also have the right to charge Interest on past due amounts at the rate equal to the lesser of one and one half percent (1.5%) per month or the maximum amount permitted by law. In addition, Advertiser shall be liable to Spencer for all attorneys’ fees and other costs of collection incurred in collecting such unpaid amounts. Based on Spencer’s review of an Advertiser account and/or credit, a credit limit may be applied to an Advertiser’s account.
(d) Cancellation Policy. Any campaigns cancelled within thirty (30) days of the send date will still be charged the full amount stated in the applicable insertion order or booking confirmation. Campaigns that are rescheduled or moved to future dates more than two (2) times will also be treated as a cancellation and will be charged the full amount stated in the applicable insertion order or booking confirmation whether or not they run. If Advertiser wishes to reschedule any Campaign start date, Advertiser must provide notice to Publisher and Spencer at least seven (7) days prior to the existing Campaign start date of the reschedule and of the new proposed Campaign start date. Failure to provide the requisite notice will be treated as a cancellation and the full amount stated in the applicable insertion order will be charged whether or not the Campaign runs.
(e) Campaign Performance and Makegoods. The performance of Campaigns shall be determined based on Spencer’s tracking and reporting, which determination shall be final and binding upon the parties. If unique clicks from a Campaign are more than thirty percent (30%) below the historical performance statistics listed on a Publisher’s Profile Page for that specific placement and Campaign type, an Advertiser is entitled to request a single makegood through Spencer from the applicable Publisher as a remedy for the under-performance. If unique clicks from a Campaign are fifty percent (50%) or more below the historical performance statistics listed on a Publisher’s Profile Page for that specific placement and Campaign type, Advertiser can request that Spencer issue a platform credit equaling the cost of that Campaign to put toward other Campaigns.
5. Ownership of Platform.
Spencer owns all right, title and interest in and to the Platform including, without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. Spencer grants Advertiser a limited, revocable, royalty-free, non-exclusive, non-transferable license to access and use the Platform for the Term (as defined below) only. Advertiser acknowledges that the rights granted under the Agreement do not provide Advertiser with title to, or ownership in, the Platform, but only a right to use the Platform subject to and under the terms and conditions of the Agreement. All rights not expressly granted to Advertiser hereunder are reserved by Spencer.
6. Suppression Lists.
In the case of a Dedicated Email Campaign, Advertiser may provide Spencer and any applicable Publishers with a copy of the Advertiser-generated Suppression List in an anonymous, encrypted format only. If no such email addresses are supplied by Advertiser, Spencer and its Publishers may conclude that no such addresses exist.
7. Term.
The Agreement shall commence on the Effective Date and continue for a period of twelve (12) months ("Initial Term"). Thereafter, the Agreement shall automatically renew on an annual basis (the Initial Term, together with each such annual renewal, the "Term"). Either party may terminate the Agreement at any time during the Term, with or without cause, upon thirty (30) business days prior written notice to the other party. Either party may terminate the Agreement immediately upon written notice if the other party materially breaches the Agreement.
8. Representations and Warranties.
Advertiser represents and warrants that:
(a) it has the full corporate right, power and authority to enter into the Agreement, to grant the licenses granted hereunder and to perform the acts required of it hereunder;
(b) the acceptance of the Agreement by it and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound;
(c) when accepted, the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms;
(d) it, as well as its services, and Sub-Marketers, will comply with any Applicable Law;
(e) it owns and/or has any and all rights to permit the use of the Creative by Spencer and its Publishers as contemplated under the Agreement;
(f) it has a reasonable basis for any and all claims made within the Creative and any Advertiser website linked to from the Creative and possesses appropriate documentation to substantiate such claims;
(g) it shall fulfill all commitments made in the Creative;
(h) the Creative is and will be accurate, complete and appropriate;
(i) it will not disable "back" browser functionality to prohibit end users from returning to the website from which the Creative was selected, if applicable;
(j) the Creative and any Advertiser website linked to from the Creative does not contain any viruses, trojan horses, time bombs, worms, cancelbots, trap doors, back door devices and similar devices that could potentially damage, intercept, expropriate or otherwise interfere with Publisher’s database or any information contained therein;
(k) prior to loading any computer program onto an individual's computer including, without limitation, programs commonly referred to as adware and/or spyware, but excluding cookies (provided that cookies are disclosed in Advertiser’s privacy policy and end-users are instructed on how to disable such cookies), Advertiser shall provide clear and conspicuous notice to, and shall obtain the express consent of, such individual to install such computer program;
(l) Advertiser shall ensure that the following shall fully comply with GDPR: (i) Advertiser’s internal security policies and procedures, encryption technology, personnel oversight and networks associated with Consumer Data; (ii) Advertiser’s record keeping practices in connection with Consumer Data obtained, stored, utilized and/or transferred to third parties by Advertiser; (iii) Advertiser’s procedures for preventing a breach of Consumer Data and responding in the event that a Consumer Data breach occurs; (iv) Advertiser’s policies and procedures related to cross-border transfers of personal information; and (v) Advertiser’s policies for honoring the right of consumers to access, modify and delete their respective Consumer Data records, including Advertiser’s policies regarding compelling third parties with which Advertiser has shared Consumer Data to honor same. Advertiser will require each party with which Advertiser shares Consumer Data to represent and warrant that each such third party will fully comply with the provisions of (m)(i) – (m)(v) contained in this paragraph.
9. Audit.
Advertiser agrees that, at all times during the Term, it shall maintain accurate books and records relating to Advertiser’s compliance with Applicable Law and the terms of the Agreement (collectively, the "Audit Items"). Advertiser agrees that Spencer, or any designee of Spencer that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the Term, and for six (6) months thereafter, to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Advertiser at least thirty (30) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at Spencer’s sole cost and expense and shall be strictly limited to those books and records that specifically relate to the Audit Items. Notwithstanding the foregoing, if Spencer uncovers any material misconduct associated with Advertiser’s compliance with Applicable Law and/or the terms of the Agreement, then the audit shall be at the sole cost and expense of Advertiser.
10. Indemnification.
Advertiser agrees to indemnify, defend and hold harmless Spencer, its subsidiaries, agents, contractors, shareholders, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any: (a) breach of the Agreement by Advertiser; (b) actual or alleged violation of Applicable Law; and/or (c) claim related to the Creative, Advertiser website(s), Advertiser’s use of the Consumer Data and/or Advertiser Products; and/or (d) act or omission of any Sub-Marketer. Spencer agrees to indemnify, defend and hold harmless Advertiser and/or, its subsidiaries, agents, contractors, officers, directors, members and employees from and against any loss, cost, claim, injury or damage (including reasonable attorney’s fees) arising out of or relating to any third party claim that Spencer has breached the Agreement.
11. Feedback.
If Advertiser provides any ideas, feedback, suggestions, materials, information, opinions, or other input to Spencer ("Feedback"), regardless of any accompanying communication, Spencer has no obligation to review, consider, or implement Feedback. All Feedback is made on a non-confidential basis, unless otherwise agreed to in writing by Spencer, and Spencer and its successors and assigns have an unconditional and unlimited right to use, reproduce, modify, and disclose such Feedback without any compensation or attribution.
12. Confidentiality.
During the Term, and after termination of the Agreement for any reason, until such time as the "Confidential Information" (as defined below) is no longer protectable under applicable law, neither party will use or disclose any "Confidential Information" of the other party except as specifically contemplated herein. "Confidential Information" means information that: (a) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing, Spencer’s Confidential Information shall include, without limitation, all aspects of the Platform and Spencer’s Suppression Lists. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party’s Confidential Information; (ii) has become publicly known through no breach of this paragraph by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party’s Confidential Information to the disclosing party.
13. Non-Circumvention.
Advertiser recognizes that Spencer has proprietary relationships with the Publishers that participate on the Platform. Other than through the Platform as contemplated under the Agreement, Advertiser agrees not to circumvent Spencer’s relationship with its Publishers, or otherwise request, solicit, hire, contract for or otherwise obtain, directly or indirectly, advertising, marketing or promotional services similar to the services provided by and through the Platform from any Publisher during the Term and for the one (1) year period following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Advertiser can show that it already obtained such services from any such Publisher prior to the Effective Date, then Advertiser shall not be prohibited from continuing such relationship. Advertiser agrees that monetary damages for its breach, or threatened breach, of this paragraph will not be adequate and that Spencer shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Advertiser in an amount equal to one hundred percent (100%) of the fees paid by Advertiser to the subject Publisher(s) in violation of this paragraph for the prior twelve (12) month period; and/or (c) any and all other remedies available to Spencer at law or in equity.
14. Disclaimer of Warranties.
THE PLATFORM AND TRACKING CODES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE PLATFORM AND TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Spencer HAS NO LIABILITY, WHATSOEVER, TO ADVERTISER OR ANY THIRD PARTY FOR ADVERTISER’S USE OF, OR INABILITY TO USE, THE PLATFORM AND TRACKING CODES. SPENCER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE CAMPAIGNS CONTEMPLATED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED HEREUNDER INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
15. Limitation of Liability.
IN NO EVENT SHALL Spencer BE LIABLE TO ADVERTISER FOR: (a) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY; OR (b) MORE THAN THE CAMPAIGN PAYMENTS PAYABLE BY ADVERTISER HEREUNDER, FOR THE PRIOR TWELVE (12) MONTHS PRIOR TO THE ACT GIVING RISE TO THE ASSERTED CLAIMS, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL Spencer BE LIABLE TO ADVERTISER FOR ANY ACTIONS OF PUBLISHER, INCLUDING, BUT NOT LIMITED TO, ANY DECISION BY A PUBLISHER TO REFUSE TO RESCHEDULE A CAMPAIGN. THE PARTIES ACKNOWLEDGE THAT THE MUTUAL PROMISES CONTAINED HEREIN REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY.
16. Waiver.
No delay or failure by either party to exercise any right under the Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided for herein. A waiver of default shall not be a waiver of any other or subsequent default.
17. Governing Law.
These General Conditions are governed and interpreted in accordance with French law. The French courts will have jurisdiction to rule on all disputes likely to arise between the parties relating to the execution of these presents.
18. Entire Agreement.
This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings and all other agreements, oral and written, between the parties relating to this subject matter. Advertiser agrees that Spencer may amend this Agreement in its sole discretion, and it will be bound by any changes to this Agreement in exchange for Advertiser’s continued use of the Platform and Services. When Spencer amends this Agreement, Spencer shall provide Advertiser with written notice via email or upon Platform login that an updated version of the Agreement has been posted to the Platform. Advertiser’s continued use of the Platform or Services following the notice of such amendment will signify and be deemed Advertiser’s assent to and acceptance of the revised Agreement.
19. Severability. If any of these Terms are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
20. Relationship of the Parties.
Advertiser and Spencer are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Advertiser will have no authority to make or accept any offers or representations on Spencer’s behalf. Advertiser will not make any statement, whether on its site or otherwise, that reasonably would contradict anything in this Agreement.
21. Assignment.
Neither party shall, without the prior written consent of the other party, assign its rights or delegate its duties under the Agreement, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either party may, in the event of a merger, acquisition or sale of substantially all of such party’s assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other party. The provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
22. Force Majeure.
Advertiser nor Spencer shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, pandemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
23. Third Party Beneficiary.
Advertiser acknowledges and agrees that Publisher is an intended third party beneficiary of the representations and warranties made to Spencer under this Agreement.
24. Electronic Signatures and Representation on Authority of Parties Executing.
The person executing this Agreement represents and warrants that they are duly authorized and have legal capacity to execute this Agreement on behalf of Advertiser. Advertiser acknowledges and agrees that Advertiser accepts this Advertiser Agreement via electronic means rather than handwritten signature ("Electronic Acceptance"). Advertiser acknowledges and agrees that by creating an account or clicking the button to accept this Advertiser Agreement, Advertiser is submitting a legally binding electronic signature and is entering into a legally binding contract. Advertiser acknowledges that Advertiser’s electronic submission constitutes Advertiser’s agreement and intent to be bound by this Advertiser Agreement. Each party represents and warrants to the other that the execution of the Agreement and the performance of such party’s obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.