These Spike Terms and Conditions (“Terms”) are entered into by Archer Platforms PTY LTD. (“Spike”) and the entity executing an Insertion Order or using the Spike dashboard (“Customer”). These Terms govern Customer’s use of the Spike service, and together with an Insertion Order (or the information entered through the Spike dashboard (“Dashboard”)) comprise the “Agreement” between Spike and Customer. If there is any inconsistency between: (i) the terms of a signed Insertion Order or those entered through the Dashboard (either “Campaign Details”), and (ii) these Terms, the Campaign Details as applicable, shall prevail.
a. Spike partners with a network of online properties (the “Network”) and displays a user interface containing links to content that navigate to the websites where such content is maintained (the “Service”). Spike uses its proprietary algorithms to determine what links to Content appear within the Service on the Network.
b. Spike shall display links to graphical, textual and/or auditory content selected by Customer (the links and the content accessed from the link together are the “Content”) on the Network through the Service. Customer will only be charged as per the agreement with a Spike sales representative, or otherwise through our standard campaign based charges. Spike shall continue to distribute the Content on the Network until the earlier of: (i) the end date, (ii) reaching Customer’s budget, or (iii) Customer disabling a campaign through the Dashboard, each of (i), (ii) and (iii) as specified by Customer in the Campaign Details (provided that Spike reserves the right to charge for additional clicks as Content is removed from circulation).
c. Spike will make reports available to the Customer, which provide information about the number of clicks received during the campaign. The final monthly reports may differ from the daily reports. The final monthly reports will provide the conclusive basis for Spike’s calculation of the fees owed by Customer. Customer may submit its own Spike-compatible click tracker. If there is a 10% discrepancy or more between Customer’s numbers (based on the Spike-compatible click tracker) and Spike’s numbers then the parties agree to work in good faith to identify the correct amount to be paid to Spike. If the discrepancy is less than 10%, Spike’s numbers shall be conclusive.
d. Spike does not guarantee: (i) the placement, positioning or the timing of delivery of any Content, (ii) clicks on any Content, or (iii) conversions. If the Content does not receive clicks amounting to the budget, Customer’s sole remedies shall be to: (i) extend the end date of the applicable campaign, (ii) replace or add to the Content with other Content (also subject to Section 2 below) to complete the campaign; or (iii) to pay only for actual clicks on the Content. In no event shall Spike be liable for failure to provide clicks.
e. Customer has the right and authorizes Spike to place the Content on the Network, and is solely responsible for determining the propriety and legality of the Content. In addition, Content selected by Customer must comply with Spike’s Content Guidelines, as may be updated from time to time by Spike. Spike may at any time for any or no reason reject or remove Content. Customer acknowledges that Spike is not responsible for the Content and that the Content may change during the course of a campaign due to revisions by the Content’s author, comments from readers, or otherwise. Customer’s recourse in the event of such change shall be to direct Spike to remove such Content from its then-current campaign and/or select other Content. Customer further acknowledges that, if there is an objection from a Content author or publisher, Spike shall cease including the Content in the Service.
f. Customer represents and warrants that: (i) if the Content was written by or under the direction of Customer or paid for by Customer, that fact shall be clearly disclosed on or near the Content; (ii) it is authorized to use and/or has approved all words of the Content’s headline (whether written by Customer or on Customer’s behalf); and (iii) Content headlines accurately reflect the tone and subject matter of the Content.
g. Customer shall not, directly or indirectly, provide Content that: (i) is obscene, defamatory, libellous, slanderous, pornographic, violent, profane, indecent or unlawful; (ii) is factually inaccurate, misleading or deceptive; or (iii) facilitates or promotes any type of illegal activity, including without limitation pyramid schemes, gambling, the sale or use of illicit drugs, or discrimination or harassment of any individual or group. Further, each piece of Customer Content shall neither (a) redirect to a destination other than as originally submitted to the Service, and/or (b) be substantively different from the Content originally submitted to the Service.
The Campaign Details will set forth the start and end date of a particular campaign. However, the Agreement, or an individual campaign may be suspended or terminated: (i) by Customer for any reason upon two (2) business days’ written notice to Spike or within twelve (12) hours through the Dashboard, or (ii) by Spike for any reason upon thirty days (30) days’ written notice to Customer. During the notice period, all previously contracted campaigns shall continue to run pursuant to the Campaign Details and Customer shall be responsible for paying Spike for all clicks received during such notice period. Spike also reserves the right to suspend or terminate Customer’s use of the Service if Spike reasonably believes Customer is in breach of the terms of this Agreement.
Customer is solely responsible for all changes requested or approved (either directly or via Spike’s API), including those made through the Dashboard using its login. Customer is solely responsible for protecting its login and password to the Dashboard. Customer can manage campaigns using the Dashboard by modifying the Campaign Details, and/or Customer may have the option of working with an Spike account manager, as determined by Spike.
h. Customer shall pay Spike fees and any applicable taxes. Customer may increase the budget through the Dashboard or through an amendment to an Insertion Order.
i. If Customer has signed an Insertion Order, fees will generally be invoiced by Spike to Customer as soon as possible, within the month of service. Payment of all advertising is required within seven (7) days of invoicing. Agency commission of 10 per cent is available to accredited agencies. If Customer has provided the Campaign Details through the Dashboard and has not signed an Insertion Order providing for invoicing, Spike shall charge the Spike fees to Customer’s credit card at such intervals as Spike determines in its sole discretion. The decision as to whether to allow Customer to choose between invoice and credit card rests solely with Spike. Spike shall review all billing inquiries, including refund requests, on a case-by-case basis and reserves the right to approve or deny any request in its sole discretion.
j. Rates are subject to change within one month’s notice.
k. If payment is not within thirty (30) days of invoice, Spike will charge interest on the unpaid amount. The rate will be calculated at the RBA cash rate plus 2.5 per cent. Any interest accrues daily and is compounded monthly. Spike also reserves the right to suspend or terminate Customer’s use of the Service until Customer has paid all amounts due and to charge Customer for all costs of collection, including collection agency and reasonable legal fees and court costs. Customer authorizes Spike to investigate Customer’s credit record. If applicable, Customer agrees to provide such further financial information and documentation as may be required from time to time by Spike as a condition for the continued extension of credit. Customer acknowledges and agrees that any account, credit card and related billing and payment information which Customer provides to Spike may be shared by Spike with companies who work on Spike’s behalf solely for the purpose of performing credit checks, effecting payment to Spike, collecting debts owed to Spike and/or servicing Customer’s account.
l. In the event that a Customer fails to pay an invoice, we will pass the invoice onto a debt collection agency. Customer will be liable for all charges incurred in using the debt collection agency. In the event that Spike needs to resort to legal action, Customer must pay us all costs to which we are entitled on obtaining a judgement in our favour. This includes, but not limited to: Legal fees, disbursements Staff costs and telephone bills Court costs, and every and all associated costs.
m. In the event that an invoice is disputed the conditions set in 5.l will not apply. Once a dispute over an invoice has been resolved to the satisfaction of both parties’ conditions in 5.l will apply.
n. Each party agrees that with respect to any Confidential Information (as defined below) that is disclosed by one party to the other in connection with the Agreement, the party receiving such Confidential Information shall not disclose such Confidential Information to any third party, or use it for any purpose, except in connection with its rights and obligations under the Agreement. “Confidential Information” means all information concerning a party or any of its subsidiaries or affiliates that is not generally known to the public, which information is marked confidential or proprietary, or which under the circumstances ought reasonably to be treated as confidential or proprietary, and includes, without limitation, the terms of the Agreement. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is, as of the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (ii) was lawfully in the possession of the receiving party as of the time of disclosure; (iii) is independently developed by the receiving party without reference to the Confidential Information; or (iv) is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed.
o. Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. Confidential Information shall not be released by the receiving party to anyone except an employee or agent, who has a need to know same, and who is bound by confidentiality obligations at least as restrictive as these contained herein. Neither party will use any portion of Confidential Information provided by the other party pursuant to the Agreement for any purpose other than as expressly set forth under the Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information strictly necessary to comply with the demands of any court order, law or governmental agency and Spike may share Confidential Information of Customer with any holding company of Customer or with any subsidiary company of Customer’s holding company.
p. If Customer is acting on behalf of a Content provider, Customer authorizes Spike to grant such Content provider (or any subsequent third party appointed by the Content provider) access to and a right to use the Campaign Details.
q. Each party represents and warrants to the other party that: (i) it has all necessary rights and authority to enter into the Agreement and grant the rights and licences under the Agreement; and (ii) the execution or acceptance of the Agreement (which includes the Campaign Details), and the performance of its respective obligations and duties pursuant to the Agreement, do not and will not violate any agreement to which such party is bound.
r. Customer further represents and warrants that: (i) the Content does not violate any applicable laws, rules and regulations and will not contain any material which may be harmful, abusive, obscene, threatening or defamatory; (ii) it has all necessary rights to permit and grants Spike pursuant to the Agreement all such rights which are necessary for Spike to (as applicable) use, host, cache, route, store, copy, modify, distribute, reformat, reproduce, publish, display, transmit and distribute the Content; (iii) use of the Content in accordance with the Agreement will not infringe any intellectual property rights of any third party; and (iv) it will not use the Service in a manner that provides an unintended advantage or interferes with the integrity and/or overall performance of the Service.
s. If Customer is an agency (or other third party acting on behalf of the provider of the Content), Customer represents and warrants that: (i) it is the authorized agent of the provider of the Content; (ii) it has the legal authority to enter into the Agreement and make all decisions and take all actions relating to the provider of the Content; (iii) it has entered into a written agreement granting the agent the authority to represent the provider of the Content in accordance with (i) and (ii) above (and shall submit such agreement to Spike on demand). EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THE AGREEMENT, Spike MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED — INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE — ABOUT ITS SERVICES AND THE PERFORMANCE OR SUCCESS OF ANY CAMPAIGNS MADE BY IT ON BEHALF OF CUSTOMER, OR THAT THE SERVICE WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE.
t. Each party shall defend, indemnify and hold harmless the other party and its respective agents, affiliates, subsidiaries, directors, officers, employees, contractors and Network partners (as applicable) against any and all third party claims resulting from the breach of such party’s duties, obligations and representations under the Agreement.
u. In connection with any such claim: (i) the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (provided that the failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations in the Agreement, except to the extent it has been damaged thereby); (ii) the indemnifying party shall have sole control of the defence or settlement of the claim (provided that the indemnifying party may not enter into any settlement that may adversely affect the rights or obligations of the indemnified party without the indemnified party’s prior written consent); (iii) at the indemnifying party’s request and expense, the indemnified party cooperating in the investigation and defence of such claim; and (iv) the indemnified party shall have the right to participate in its defence with counsel of its own choosing at the indemnified party’s expense.
v. No liability is accepted for any loss arising from the failure of an advertisement or any part thereof to appear on the Spike network or from any error in an advertisement contained within Spike.
w. Spike accepts no responsibility for artwork prepared or created on behalf of you. All advertising is placed on Spike at your risk.
x. In providing artwork to Spike the customer acknowledges they have examined the material for the purpose of determining whether it contains any defamatory matter or slander of title, infringed any trademark, or constitutes an invasion of privacy, breach of copyright or breach of the Trade Practices Act, the Australian Securities & Investments Commission Act 2001, the Copyright Act 1968 or the Fair Trading Act 1987; or the Consumer Credit Code.
y. Customer or agents of customer indemnify Spike from or in connection with the publication of the advertisement, its directors and servants against all liability, claims, demands, costs or proceedings whatsoever arising directly or indirectly from or in connection with our publications; warrant that the publication of the material will not give rise to any rights or liabilities against Spike, its directors and servants or agents, and Spike may relay on the above acknowledgement that the material has been duly examined.
z. No press releases or general public announcements shall be made without the mutual consent of Customer and Spike. Spike shall have the right to include Customer’s name on Spike’s client list and in other marketing materials. Customer shall not use Spike’s name, logo or trademark without Spike’s prior written consent.
aa. No failure of either party to enforce any of its rights under the Agreement will act as a waiver of such rights. If one or more provisions of the Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from the Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms.
bb. Neither party shall be liable for any delay or failure to perform any of its obligations set forth in the Agreement due to causes beyond its reasonable control. Neither party shall be liable for any unavailability or inoperability of the Internet, technical malfunction, or computer error or corruption resulting in loss of data or other harm.
cc. Sections 6, 8, 9 and 10, together with any outstanding undisputed payment obligation, shall survive the termination of the Agreement.
dd. Customer and Spike shall each act as independent contractors. Nothing in the Agreement shall be deemed or create or construed as creating a joint venture or partnership between the parties.
ee. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and may not be modified without the prior written consent of both parties. In no event shall any inconsistent or conflicting terms and conditions contained in any purchase order, insertion order, invoice or other document submitted by Customer concerning the subject matter hereof have any force or effect even if accepted or signed by Spike.