Swiftly Insertion Order Terms and Conditions

These Swiftly Insertion Order Terms and Conditions (“Terms”) apply to Insertion Orders signed (electronically or otherwise) by the advertiser listed on the Insertion Order (“Advertiser”) and Swiftly Systems, Inc. (“Swiftly”) for insertion of advertisements on the stated Swiftly proprietary platforms (“Platform”) for applicable Swiftly retailers described in the Insertion Order (“Retailers”).  These Terms shall apply to any Insertion Order submitted by Advertiser to Swiftly.

1. Media Plan

Advertiser and Swiftly shall identify a Reservation (as defined below) of requested inventory in accordance with a media plan as agreed by the Parties and as memorialized in the applicable Insertion Order and Reservation form (“Media Plan”).  A reservation form is a separate document with which Advertiser requests Swiftly to reserve a collection of Retailer ‘in-app’, ‘onsite’ and/or ‘amplification’ advertising elements by specified type and timeslots over a given time period, as agreed to by Swiftly as set forth in the Media Plan.  Reservations under an applicable Insertion Order shall be made pursuant to Swiftly’s Reservation form.

2. Term

The term of each Insertion Order shall commence upon Advertiser’s submission of, or signature on, an Insertion Order to Swiftly for performance of the insertion of advertisements on the Platform and shall continue for the entire length of time during which inventory is reserved under the Reservation (“Insertion Order Term”).

3. Changes

Advertiser may request changes to the inventory covered by an Insertion Order and Swiftly will make good faith efforts to evaluate and accommodate such change and shall memorialize any changes in the Insertion Order via email.

4. Campaign Guidelines

For each advertising campaign established by Advertiser and Swiftly which may comprise multiple Insertion Orders (“Campaign”), Advertiser shall comply with Swiftly’s current Insertion Order submission process, methods and technology requirements as made available to Advertiser in writing or on Swiftly’s website.  All Insertion Order image assets must conform to the published requirements for the applicable platform, including but not limited to those requirements pertaining to image size, image quality, file format and target Actions (as defined below) as described in the “Publishing Requirements” document that shall be made available to Advertiser.

5. Promotion

Swiftly shall promote the Campaigns through the Platform and Services as specified in each relevant Insertion Order. Swiftly will deliver ads to the specified audience in accordance with the Insertion Order.   Notwithstanding the foregoing, Swiftly cannot and does not guarantee that ads will achieve any desired results.

6. Actions and Reporting

The success of the Campaign may be measured in terms of consumer actions specified by the Advertiser and attributed to an advertisement. These measures as specified in the Insertion Order (each, an “Action”) may include, for example, a completed purchase, a form submission, leads, number of clicks, click-through rate, conversions, sales, or number of impressions, impressions delivered, or open rate. Swiftly will provide Campaign performance reports to Advertiser within six (6) weeks from the completion of a Campaign.

7. Creative Content

7.1 Advertiser shall be responsible for developing and providing to Swiftly advertisement materials, including but not limited to banners, promotional messages, text links, keywords, web pages, category icons, descriptions and videos and any other creative content as needed for the Campaigns and any custom content created by Swiftly for Advertiser pursuant to a separate written document (collectively, the “Advertiser Creative Content”).  Advertiser Creative Content does not include any materials that are independently developed, created by Swiftly or that was previously developed or created by Swiftly prior to the Agreement.  

7.2 Swiftly shall be responsible for inserting any links contained in any Advertiser Creative Content but shall not be responsible for the availability of any intended destination.  It is the Advertiser’s responsibility to manage, edit, delete, and otherwise control the Advertiser Creative Content by means of correspondence with Swiftly. Advertiser warrants that all websites linked to the Advertiser Creative Content shall be owned and controlled solely by Advertiser or its licensors or third-party contractors.

7.3 Advertiser warrants that all Advertiser Creative Content complies with applicable laws and will conform to the applicable Retailer’s brand guidelines if stated.  Upon prior written notice to Advertiser, Swiftly may refuse to include any Advertiser Creative Content in any Insertion Order where Swiftly reasonably deems that the Advertiser Creative Content does not comply with these Terms.  

7.4 Advertiser acknowledges that Retailer or their service provider may resize the Advertiser Creative Content (without Advertiser consent) if required for their applicable platform, but may only make other modifications upon approval of Advertiser.  

7.5 Swiftly is not responsible for reviewing Advertiser Creative Content for any errors, misspellings, or inaccurate descriptions, which shall be the responsibility of the Advertiser. Advertiser is responsible for proof-reading all Advertiser Creative Content prior to submitting it to Swiftly.  

7.6 Advertiser grants to Swiftly a non-exclusive, worldwide, royalty-free, non-transferable (except as permitted herein) license to use, reproduce, display, distribute, deliver, perform, modify (e.g., for formatting) the Advertiser Creative Content solely to the extent necessary for purposes of carrying out the services required to effectuate the Insertion Order(s), for non-public, non-published use by providing as sample creative content to current and prospective Swiftly customers and for any other use as may be directed or approved by Advertiser including for use on the Platform for additional Retailers.  Advertiser represents and warrants that it owns or has secured all rights necessary to grant the foregoing license rights in the Advertiser Creative Content.

8. Payment

8.1 Advertiser agrees to pay the fees as set forth in the Insertion Order (“Fees”).  Swiftly will invoice Advertiser as stated in the Campaign or Insertion Order.  Advertiser shall pay all undisputed Fees within thirty (30) days after the date the invoice is received.  

8.2 In the event of any dispute regarding payments due under invoice, Swiftly and Advertiser shall work in good faith to resolve such discrepancy within the seven (7) calendar days before the due date of the invoice.  Any undisputed amounts must be paid by Advertiser per the agreed terms above; disputed amounts shall be due upon good faith resolution of the dispute by both Parties.

8.3 Advertiser agrees that it shall be solely liable for payment to Swiftly under these Terms. Advertiser represents and warrants that it shall furnish payment on all undisputed invoices, regardless of any non-payment to Advertiser by any third-party including, without limitation, Advertiser’s clients. Advertiser further agrees to make payments in U.S. dollars.

8.4 Except as specifically set forth in these Terms, each Party shall be solely responsible for all of its out-of-pocket expenses incurred in connection with the performance of these Terms. Each Party shall be solely liable for the payment of any and all taxes in connection with the performance of their obligations under these Terms.  The Fees do not include any applicable federal, state or local taxes and any such taxes or governmental charges with respect to the Platform or Services, including sales or use taxes (but exclusive of income or corporate franchise taxes) (“Taxes”).

9. Intellectual Property

9.1 Except as otherwise set forth in these Terms, as between Advertiser and Swiftly, Advertiser shall own and retain all intellectual property rights and title to the Creative Content.  

9.1 Swiftly is the exclusive owner of all intellectual property right, title and interest in and to the Platform and Services, including without limitation all intellectual property, software, databases, knowhow, and other aspects and technologies included with the Platform and any enhancements thereto.

9.2 Swiftly retains all right, title and interest in and to any data collected by Swiftly via the Platform.  Advertiser acknowledges that it neither owns nor acquires any rights in and to the foregoing not expressly granted by these Terms.  Swiftly may retain and use, subject to the terms of its privacy policy, any end user data and any aggregated or derivative data.  Swiftly may aggregate end user data with other data, and use such aggregated data, provided that Swiftly will only aggregate data in a manner such that no third party could identify which users' data contributed to the aggregated set.

10. Cancellation and Abandonment

10.1 Without Cause. Unless designated on the Insertion Order as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof without cause, as follows:

10.1.1 Upon twenty-eight (28) days’ prior written notice to Swiftly, without penalty, for inventory if guaranteed for delivery in the IO.  For example, if Advertiser cancels the guaranteed portions of the IO eight (8) days prior to serving of the first impression, Advertiser will only be responsible for paying for the first twenty (20) days of that inventory.

10.1.3 Upon 30 days’ prior written notice to Swiftly, without penalty, for any fixed fee-based or fixed-placement inventory.

10.2  For Cause. Swiftly may terminate any Insertion Order at any time if Advertiser is in material breach of its obligations hereunder, which breach is not cured within ten (10) days after receipt of written notice thereof from Swiftly to Advertiser.

11. Reporting and Tracking Data

11.1 Swiftly shall track the Action statistics generated for each Campaign.

11.2 For Campaigns that run longer than four (4) weeks, Swiftly will either (i) provide a Bi-weekly report via email to Advertiser; or (ii) make available through an advertiser success portal; in either case, a report that details Action information as tracked by Swiftly for each Campaign (a “Report”). Reports shall reflect daily gross conversion numbers for each Campaign as reported by Swiftly.  However, Advertiser agrees that the data provided in any such Reports may not be completely accurate and should not be relied upon until finalized in the relevant month’s invoice, and that the figures provided on such invoices are final and binding.  Swiftly grants Advertiser a worldwide, non-exclusive license to use provided Reports for purposes of assessing its Campaigns.  Advertiser may not publish or resell such Reports or data regarding the effectiveness of Campaigns with a Retailer to any third-party.  

11.3 Impression Forecast and Targets.  If the Campaign includes an impression forecast or target for advertising impressions, then Swiftly will use commercially reasonable efforts to meet the target metrics for such impression forecast.  Impression forecasts are intended to be estimates and not a precise threshold or guarantee for impressions.  If for any Campaign Swiftly does not meet the impression forecast by a deficit of more than twenty percent (20%) then Swiftly shall, at Advertiser’s option, Advertiser and Swiftly shall extend the Campaign by mutual consent to reach the intended impression forecast or include additional impressions in a follow-on Campaign.

12. Warranties; Disclaimers

12.1 Mutual Warranties. Each Party represents and warrants to the other Party that: (i) it has sufficient expertise and experience to perform its obligations hereunder; (ii) it has the full right, power, and authority to enter into the Insertion Order, grant the rights and licenses herein, and to perform the acts required of it hereunder; and (iii) the execution of the Insertion Order, and the performance of its obligations hereunder, do not and shall not violate any agreement to which it is a Party or by which it is bound.  Each Party’s use of the other Party’s Confidential Information and of the End User Data will comply with all applicable federal, state and local data protection laws and regulations (collectively, “Data Protection Laws”).

12.2 General Compliance. Swiftly agrees, represents and warrants that (i) it shall perform its obligations hereunder in a timely, workmanlike, and professional manner and with due care in accordance with industry standards and applicable U.S. laws, rules, or regulations, including but not limited to the CAN-SPAM Act and any state SPAM law, the U.S. Federal Trade Commission Act, and any other applicable federal, state, or local marketing or advertising laws, rules, and regulations promulgated thereunder (collectively, the “Consumer Protection Laws”) and (ii) the Platform and Services shall not violate the Intellectual Property or personal rights of any third party.

12.3 DISCLAIMER.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN AND IN ANY INSERTION ORDERS, SWIFTLY MAKES NO WARRANTIES WITH RESPECT TO THE PLATFORM OR SERVICES, AND SWIFTLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  

13. Limitation of Liability

13.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THE INSERTION ORDER OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF THE PARTY WITH ALLEGED LIABILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.2 IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED THE LESSER OF: (A) TWO TIMES (2X) THE AGGREGATE AMOUNTS PAID OR OWED BY ADVERTISER TO SWIFTLY UNDER THE CAMPAIGN IN THE TWELVE (12) MONTHS PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO ANY CLAIM, OR (B) $50,000.

13.3 NOTWITHSTANDING ANY STATEMENT TO THE CONTRARY IN THESE TERMS, THE LIMITATIONS OF LIABILITY OF THIS SECTION SHALL NOT APPLY TO A PARTY'S OBLIGATIONS OF INDEMNIFICATION, OR CLAIMS OF A BREACH OF CONFIDENTIALITY, GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, OR CLAIMS ARISING FROM MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR VIOLATION OF APPLICABLE LAWS OR REGULATIONS. NOTWITHSTANDING ANY STATEMENT TO THE CONTRARY, NOTHING IN THESE TERMS SHALL BE DEEMED TO EXCLUDE OR LIMIT ANY LIABILITY UNDER ANY APPLICABLE LAW OR STATUTE WHICH SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED.