/s/ Mark Okerstrom
/s/ Seth J. Kalvert
Chief Financial Officer
An advertising contract is a legally binding agreements between advertisers and publishers. They typically include details about the content of the advertisement, how long it will be displayed for, who has the rights to publish the advertisement, and its cost.
Understanding advertising contracts is important for business owners as they will have to pay upfront and then wait for their ad to generate results in order to recoup their costs. In addition, there may be hidden costs such as media buys and agency fees which can lead to an unexpected financial burden if not properly understood before signing the agreement.
Below is a list of common sections included in Advertising Contracts. These sections are linked to the below sample agreement for you to explore.
MASTER ADVERTISING AGREEMENT (CPC)
This Master Advertising Agreement (CPC) (“Agreement”) is entered into by and between, on one hand, TripAdvisor LLC, TripAdvisor Limited, and TripAdvisor Singapore Private Limited (collectively, the “TripAdvisor Companies”) and, on the other, Expedia, Inc., Hotels.com LP, and Travelscape LLC (collectively, the “Expedia Companies”). This Agreement will be effective as of December 20, 2011 (the “Effective Date”).
| 1) | Defined Terms. |
| a) | “Ad(s)” means the advertising media specified in an applicable Schedule. |
| b) | “Advertiser” means the Party or Parties designated in a Schedule that desire to have Ads placed on Media Properties. |
| c) | “Affiliate” means, with respect to the Expedia Companies or the TripAdvisor Companies, any entity that controls, is controlled by, or under common control with such party. |
| d) | “Media Properties” means one or more websites and/or other electronic media distribution channels (e.g., email) designated in an applicable Schedule. |
| e) | “Party” means, as applicable, an Expedia Company, a TripAdvisor Company, or their respective Affiliates. |
| f) | “Publisher” means the Party or Parties designated in a Schedule who are placing Ads on Media Properties on behalf of an Advertiser. |
| g) | “Schedule” means an attached schedule identifying the applicable Advertiser and Publisher, Media Properties and Ad(s). |
| 2) | Description of Service. Except as otherwise provided in Sections 3, 4 and 5 of this Agreement, Publisher shall display the Ad(s) beginning on the Start Date and ending on the sooner of (a) the End Date or (b) the end date that the overall sum of the total cost per click charges, impression levels, or flight duration commitments stipulated in the applicable Schedule reach the net amount of advertising purchased. Publisher shall use good faith efforts to deliver the number of click-throughs or impressions (if specified in the applicable Schedule) within the time period stated, but shall not be liable at all for failing to do so. If a Schedule states that it is an open order, then Advertiser shall not limit or cap its budget or limit the items available for Publisher to promote on the Media Properties (e.g. Advertiser shall make all hotels that are available on Advertiser’s websites available for Publisher to promote on the Media Properties) unless otherwise specified. |
Schedules. Upon mutual written consent and approval (which may occur via email), the Parties may make changes to the non-financial details of an advertising campaign previously set forth in a Schedule (e.g., changes to the placement description, creative unit, start/end dates and number of ad requests). No other conditions, provisions, or terms of any sort appearing in any writings or other communications made in connection with such Schedules, including without limitation those contained on or accompanying checks or other forms of payment, will be binding on Publisher, whether in conflict with or in addition to this Agreement. The Schedules are not subject to cancellation, except as provided below under Section 7. Advertiser will use Publisher services in accordance with applicable law and in a
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
| manner which does not interfere with, disturb, or disrupt other network users, services, or equipment, as determined by Publisher in its sole discretion. Each Schedule shall specify (if applicable) the types and amount of inventory to be delivered (e.g. impressions, clicks, or other desired actions as the “Deliverables”), the price for such Deliverables, the maximum amount of money to be spent pursuant to the Schedule (if applicable), the start and end date of the campaign, if applicable. |
Publisher reserves the right, without liability, to reject, remove and/or cancel any Ads which contain content or links which do not meet Publisher’s advertising specifications, at Publisher’s sole discretion. Publisher’s sole liability under this Section shall be to refund the pro-rata portion of amounts paid for the unfulfilled advertising term, if any. Publisher may redesign its Media Properties at its sole discretion at any time.
| a) | Advertiser hereby grants Publisher the right to display its Ad(s) (and other related content such as thumbnail photos) on the designated Media Properties. Failure by Publisher to publish any requested Ad(s) does not constitute a breach of contract or otherwise entitle Advertiser to any legal remedy. |
| b) | Advertiser’s failure to comply with all applicable requirements of Publisher’s advertising specifications may delay or prevent delivery of the Ad(s). |
| c) | Advertiser shall be solely responsible for the content of its Ad(s) and any web site linked to from such Ad(s) and shall indemnify Publisher for all loss, costs, and damages in connection with any claims of infringement of any third party rights. Advertiser represents, warrants and covenants to Publisher that at all times, (a) it is fully authorized to publish the entire contents and subject matter of all requested Ad(s) (including, without limitation, all text, graphics, URLs, and Internet sites to which URLs are linked); (b) all such materials and Internet sites comply with all applicable laws and regulations and do not violate the rights (including, but not limited to, intellectual property rights) of any third party; (c) it has the full corporate rights, power and authority to enter into this Agreement and to perform the acts required of it hereunder, and its execution of this Agreement does not and will not violate any agreement to which it is a party or by which it is otherwise bound, or any applicable law, rule or regulation; and (d) each such Internet site is controlled by Advertiser and operated by Advertiser or its independent contractors, is functional and accessible at all times, and is suitable in all respects to be linked to from the applicable site containing the Ad(s). |
| d) | It is the Advertiser’s obligation to submit Ad(s) in accordance with Publisher’s then-existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Publisher’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Media Properties on which the Ads are to appear), other editorial or advertising policies, and material due dates) (collectively “Policies”). |
5) Privacy and Compliance. From the date that an Ad begins to run, through the expiration or termination of the Agreement or applicable Schedule, Advertiser shall have a privacy policy in place governing Advertiser’s use of end users’ personal information that meets or exceeds any applicable laws, rules and regulations governing the use of such information. Both parties shall
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
ensure that any collection, use and disclosure of information obtained pursuant to the related Schedule comply with all applicable laws, regulations and privacy policies, including all of the requirements the CAN-SPAM Act. Advertiser agrees not to send any unsolicited, commercial email or other online communication (e.g., “spam”) through to Publisher users and shall comply with all applicable Publisher policies regarding bulk mail. For the purposes of any email or advertising placements, Advertiser designates Publisher as the “sender” for compliance with the CAN-SPAM Act. This section shall survive the completion, expiration, termination or cancellation of this IO for a period of five (5) years.
6) Payment Terms and Calculations. Advertiser shall be invoiced by Publisher on a monthly basis upon completion of the calendar moth in which the advertising was displayed unless stated otherwise in the applicable Schedule. Publisher’s payment terms are net 30 days from the date of invoice. In addition to any other rights, Publisher may immediately remove Advertiser’s Ad(s) in the event of non-payment by Advertiser within such time period. All sums payable by Advertiser to Publisher under this Agreement are exclusive of any sales tax, indirect or similar taxes chargeable on any supply to which those sums relate. All billing calculations are based solely on the ad impression or quick count metrics as calculated by Publisher (including, but not limited to CPM and CPC), not Advertiser or third party calculations, unless otherwise specified in the Schedule.
7) Term and Termination. Unless terminated earlier in accordance with this Agreement, all Schedules hereunder will begin upon the Effective Date and extend for a period of one (1) year thereafter. This Agreement may be terminated by either party if a material breach of this Agreement remains uncured after the non-breaching party has given thirty (30) days prior written notice to the breaching party specifying the breach. So long as any Schedule remains in effect, this Agreement shall also remain in effect. If any Schedule is terminated for any reason, Advertiser shall pay to Publisher, within thirty (30) days after such termination, all amounts not yet paid for such delivered Ad requests up to the effective date of termination. IF EITHER PARTY TERMINATES ANY SCHEDULE, ADVERTISER’S SOLE REMEDY WILL BE A REFUND OF ANY PRE-PAID FEES IN EXCESS OF THE FEES OWED TO PUBLISHER UNDER THE SCHEDULE. NEITHER PUBLISHER NOR ANY OF ITS AFFILIATES WILL HAVE ANY OTHER LIABILITY OF ANY NATURE TO ADVERTISER.
8) Confidentiality. Any marked confidential information and proprietary data provided by one party, including the pricing of the Ads, shall be deemed “Confidential Information” of the disclosing party. Confidential Information shall also include information provided by one party, which under the circumstances surrounding the disclosure would be reasonably deemed confidential or proprietary. 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, [**] Notwithstanding the foregoing, the recipient may disclose such Confidential Information if required by any judicial or governmental request, requirement or order; provided that the recipient will take reasonable steps to give the disclosing party sufficient prior notice in order to contest such request, requirement or order. [**]
| 9) | Liability, Warranty & Indemnity |
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
| (a) | EXCEPT AS OTHERWISE STATED HEREIN, PUBLISHER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO OR PAGES DISPLAYED ON THE MEDIA PROPERTIES OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE TIMES OF THE MEDIA PROPERTIES. PUBLISHER DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY OTHER LOSS, INJURY, COST OR DAMAGE SUFFERED BY ADVERTISER OR ANY THIRD PARTY. IN NO EVENT SHALL ANY PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS. THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT. IN NO EVENT SHALL ANY PARTY BE LIABLE TO ADVERTISER FOR AN AMOUNT IN EXCESS OF THE TOTAL DOLLAR AMOUNT RECEIVED OR RECEIVABLE BY PUBLISHER FROM ADVERTISER FOR THE SPECIFIC AD AT ISSUE. |
| (b) | Advertiser agrees to defend, indemnify and hold harmless Publisher and each of Publisher’s agents, customers, subcontractors and affiliates, and the officers, directors, and employees of any of the foregoing, from, against and in respect of any and all losses, costs, (including reasonable attorney’s fees) expenses, damages, assessments, or judgments (collectively, “Liabilities”), resulting from any claim against any such parties in connection with Advertiser’s Ad(s), except to the extent that such claims directly resulted from the gross negligence or willful misconduct of Publisher. |
10) General Provisions. These terms and conditions are governed by the laws of the State of New York, USA. The Parties consent to the exclusive jurisdiction and venue of courts of New York City (Manhattan), New York, for all disputes related to the subject matter hereof. No joint venture, partnership, employment, or agency relationship exists between Advertiser and Publisher. Neither Party will be deemed to have waived or modified any of these terms and conditions except in writing signed by its duly authorized representative. Neither Party may assign its rights hereunder to any third party unless the other Party expressly consents to such assignment in writing, not to be unreasonably withheld. If any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be deemed modified to the extent necessary to make them enforceable. Except as specifically provided herein, this Agreement and all Schedules hereto constitute the entire understanding and agreement between the parties and supersedes any and all prior understandings and/or agreements between the parties with respect to the subject matter. No change, amendment or modification of any provision of this Agreement or waiver of any of its terms will be valid unless set forth in writing and mutually agreed to by the parties.
Portions of this document have been redacted pursuant to a Request for Confidential Treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. Redacted portions are indicated with the notation “[**]” and have been separately filed with the Commission in unredacted form in connection with such request.
[ Signature page to Master Advertising Agreement (CPC) ]
/s/ Mark Okerstrom
/s/ Seth J. Kalvert
Chief Financial Officer