Citywide Spotlight

Terms and Conditions for Advertisers

Last Updated 07 September 2022

 

Citywide Spotlight, LLC and its affiliated companies and subsidiaries (collectively, “Company”) provides the www.citywidespotlight.com website and its associated software, features, functionality, and programs (collectively, the “Site”) for End Users who wish to gain information about dining, event, entertainment and hospitality services offered by third-party providers (“Venues”). 

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This Terms and Conditions for Advertisers Agreement (this “Agreement”) governs the placement of Ads by Advertisers on the Site.  Advertisers understand and agree to all terms and conditions of this Agreement, as well as:

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the Site Terms of Use [ https://www.citywidespotlight.com/terms-of-use ],

the Site Privacy Policy [ https://www.citywidespotlight.com/privacy-policy ],

the Site Subscriber Terms [ https://www.citywidespotlight.com/subscriber-terms ],

the Site Community Standards [ https://www.citywidespotlight.com/community-standards ],

and the Site Terms of Sale [ https://www.citywidespotlight.com/terms-of-sale ], as each are amended from time to time (collectively, the “Legal Agreements”).  

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Any capitalized terms not defined herein shall have the meaning attributed to them in the respective Legal Agreement.

 

1. Definitions.

For purposes of this Agreement, the following terms shall have the meanings given to them below.

1.1    “Ad Impression” means each occurrence of an Ad being displayed on the Site to an End-User.

1.2    “Ad” means a text-based, graphical, interactive, rich media, social, e-mail, video or other online advertisement to be provided by Advertiser to Company.

1.3    “Ad Creative” means creative content, including but not limited to banners, video, text, links, keywords and HTML, for marketing Advertiser’s service or product pursuant to the Order.

1.4    “Advertiser” means the person or entity identified as “Advertiser” or “Agency” in the associated Order.

1.5    “Advertiser Party” has the meaning given in Section 11.

1.6    “Agreement” means these Terms and Conditions for Advertisers, together with the associated Order.

1.7    “Company” means the legal entity identified in the Order as such.

1.8    “Company Data” has the meaning given in Section 6.

1.9    “Company Party” has the meaning given in Section 11.

1.10    “Campaign” is the basic unit of business between an Advertiser and Company. Each Campaign may be categorized as a CPA Campaign, CPC Campaign, CPM Campaign, CPM-A Campaign or CPM-C Campaign, or a campaign based on some other kind of Deliverable to be specified in an Order.

1.11    “Claim” has the meaning given in Section 11.

1.12    “Confidential Information” has the meaning given in Section 12.

1.13    “CPA Campaign” shall mean a Campaign where the Fees are based on the number of specified actions taken by End Users. Examples of an action include a completed sale or a contact form filled in. For this definition, clicks are not considered actions, to distinguish CPA Campaigns from CPC Campaigns.

1.14    “CPC Campaign” shall mean a Campaign where the Fees are based on the number of clicks by End Users on the Campaign’s Ad.

1.15    “CPM Campaign” shall mean a Campaign where the Fees are based on the number of Ad Impressions.

1.16    “CPM-A Campaign” shall mean a Campaign where the Fees are based on the number of Ad Impressions, where the Campaign has been optimized to obtain a higher rate of actions by End Users.

1.17    “CPM-C Campaign” shall mean a Campaign where the Fees are based on the number of Ad Impressions, where the Campaign has been optimized to obtain a higher rate of clicks by End Users.

1.18    “Creative Service Campaign” shall mean a Campaign for which Company has had to create and or design part or all of the Ad Creative.

1.19    “Data Aggregator” shall mean any group, company, and or organization that collects and compiles information from the Site to sell to others.

1.20    “Deliverable” means a type of Ad billable metric (e.g., impressions, clicks or other desired actions) amount to be delivered for a Campaign.

1.21    “Disclosing Party” has the meaning given in Section 12.

1.22    “Effective Date” means date of signature of the Order.

1.23    “End Users” means users of the Site.

1.24    “Fees” means those certain fees indicated in the associated Order.

1.25    “Order” means an order for Company to publish Advertiser’s Ads on the Site. An Order will list one or more Campaigns.

1.26    “Intellectual Property Rights” means all works of authorship, registered copyrights, common law copyrights, registered trademarks, common law trademarks, trade dress, labels, designs, logos, patents, patent applications, know-how, trade secrets, database rights, design rights and all other intellectual property rights and associated goodwill (whether or not any of these is registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.

1.27    “Loss” has the meaning given in Section 11.

1.28    “Party” in the context of this Agreement means either Company or Advertiser; “Parties” means both Company and Advertiser cumulatively.

1.29    “Receiving Party” has the meaning given in Section 12.

1.30    “Social Account” has the meaning given in Section 4.

1.31    “System” means Company’s proprietary system and related tools that enable Advertiser to run Ad Campaigns and distribute Ads and to manage and administer the foregoing.

1.32    “Targeting Criteria” means the parameters made available to Advertiser against which Advertiser may target the display of Ads on the Site.

1.33    “Term” has the meaning given in Section 7.

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2. Ad Bids and Ordering Ads. 

Advertiser must be a registered Subscriber to the Site and must register as a Spotlight Challenger in order to be eligible to place an Ad on the Site. In addition, potential Advertisers must also join the “Spotlight Association” in order to participate in the bidding process.

 

Spotlight Association: 

• To join, a non-refundable Payment must be made, a minimum of $99.99 is required to process your application.

• Upon acceptance of your application, you will have access to participate in the Spotlight ad-space bid process.

• ​All accepted Spotlight Association Members are listed on each of your city's leaderboard page.

• A business/organization logo is required to be listed.

• Bid winners are granted a full feature, including graphics, description, phone number, physical address, along with a redirection to a website destination of their choice.

• Reoccurring Spotlight Association Membership dues of $99 (monthly), $274.99 (quarterly), or $999.99 (annually) take effect, 1 payment period (that you choose) from the date the Application is submitted.

• Your application will be reviewed as soon as possible. You will receive a confirmation or denial email at the time of the determination. At that time, your access to the Spotlight Challenger Association will be granted or denied.

 

Ad Bids

In addition to the requirements listed herein, general qualifications and limitations regarding eligibility to place ads and ad content are described herein and on the Site at: https://www.citywidespotlight.com/spotlight-learn-more and https://www.citywidespotlight.com/bid-win-run-schedule, as amended from time to time.

 

Ads will be awarded based on bidding format ("Bids") as follows:

1. Spotlight Association Members.  “Spotlight Association Members” are a Subscriber Venues that are ineligible to become a Diamonds due to their classification and that desires to place an Ad on the Site.  Spotlight Association Members may place Bids to advertise in their city’s quarterly ad-space.  One sponsor Ad is awarded per city and will be eligible to place an Order for 1 calendar quarter of Ad on the Site, which they can edit, at-will, subject to these terms.

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Details of the Bid process are described here:

https://www.citywidespotlight.com/bid-win-run-schedule

 

More information and to apply, visit:

https://www.citywidespotlight.com/spotlight-learn-more

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The foregoing links describe the terms of the “Spotlight Association Ad Bid Program,” and are incorporated herein by reference. Advertisers understand and agree to all terms and conditions of the Spotlight Association Ad Bid Program as described on the pages linked above, and as each are amended from time to time.

 

“Spotlight Bid Winners.  “Spotlight Bid Winners” are Spotlight Association Members that won their respective city’s quarterly auction (3 calendar months of ad-space). Spotlight Bid Winnders can:

1. Change their advertisement, a maximum of 3 times - 1 per month.

2. Eligible to receive future discounts offered by the Diamonds: not yet implemented.

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More information, visit:

www.citywidespotlight.com/spotlight-champion-content-editor

 

The foregoing links describe the terms of the “Spotlight Bid Winner Program,” and are incorporated herein by reference. Advertisers understand and agree to all terms and conditions of the Spotlight Bid Winner as described on the pages linked above, and as each are amended from time to time.

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Once awarded to a Spotlight Association Member, an Order for an Ad will be binding only if accepted and signed by Company and Advertiser. Each Order will specify for each Campaign: (a) the Deliverables; (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent pursuant to the Order (if applicable); and (d) the start and end dates. Other items that may be included are, but are not limited to, the following: the identity of any third-party Ad server; reporting requirements such as impressions or other performance criteria; any special Ad delivery scheduling and/or Ad placement requirements; and specifications concerning ownership of data collected.

 

Bid winners will continue to be featured after their initial Bid selection if there's not a new Bidder for their city, up to three (3) consecutive calendar months.

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Bid wins and quarterly Features are limited to 3 consecutive months (even if you are the selected bidder for the fourth consecutive month – the choice Bid will be featured, and your winning bid amount will be refunded).

 

A maximum of 6 monthly features (2 quarters) per 12 months. 

 

3. Use of System.

3.1     Use of System.

Advertiser agrees to use, and Company agrees to make available, the System during the Term according to the terms and conditions of this Agreement. As between Advertiser and Company, Advertiser shall be solely responsible for soliciting with the Ads and responding to inquiries in connection therewith. Company has the right at any time to change or discontinue any aspect or feature of the Site including, without limitation, the content and software needed for access or use of the Site.

 

3.2     License Grant.

Company hereby grants to Advertiser the non-exclusive, non-transferable, non-sublicensable right and license during the Term to access and use the System for the purpose of placing Ads in accordance with the terms and conditions of this Agreement.

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3.3     Restrictions.

Except as set forth in this Agreement, Advertiser agrees not to (a) use or authorize use of the System for any purpose not specified in this Agreement; (b) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the System or access thereto; (c) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the System or any portion thereof; or (d) attempt to do any of the foregoing.

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3.4     No Implied Licenses.

Except to the extent set forth herein, (a) Company does not grant to Advertiser any other license, express or implied, to Company’s Intellectual Property Rights and (b) nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant either Party any right, title or interest, implied or otherwise, in or to the Intellectual Property Rights of the other Party. Company expressly reserves all Intellectual Property Rights not expressly granted hereunder.

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3.5     Availability of System.

Advertiser understands and agrees that from time to time the System may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Company may undertake from time to time; or (c) causes beyond the control of Company or which are not reasonably foreseeable by Company, including, without limitation, interruption or failure of telecommunication transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of the Site, Internet congestion or other failures.

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3.6     The Site Content.

Advertiser understands that Company shall not monitor all publisher sites for appropriate content and makes no representations with respect to content associated with any End-User account. If Advertiser reasonably determines that the placement of any Ad by Company or its respective publishers harms the goodwill or reputation of Advertiser, Advertiser may submit a written request to Company to remove the Ad from the Site and/or the publisher page. In such instance, Company will remove, or notify the publisher to remove the Ads within three (3) business days following Advertiser’s notice thereof to Company.

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4. Ad Content.

4.1     Ad Creative.

Advertiser shall provide all of the Ad Creative. Advertiser is solely responsible for all of the Ad Creative including any part created by Company pursuant to Advertiser’s instructions. Advertiser shall confirm functionality of Ad Creative twenty-four (24) hours prior to the campaign start date. Company is not responsible for reconfirming such confirmation and is not responsible or liable for errors in Ad Creative.  All Ad content must comply with this Agreement and the Company Advertising and Creative Guidelines, which are attached and incorporated herein by reference, and as amended from time to time. Company reserves the right to remove, terminate or refuse to run any Ad or Campaign that violates this Agreement or that, in the sole discretion of Company, is offensive or contrary to the culture or image of Company or its End-Users.

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4.2     E-mail Campaigns.

To the extent Advertiser is requesting e-mail marketing, Advertiser must provide: (1) the “From”, which shall be (a) Advertiser’s name (if Advertiser is not an agency) or Advertiser’s own client’s name (if Advertiser is an agency); (b) a registered d/b/a of Advertiser (if Advertiser is not an agency) or of Advertiser’s own client (if Advertiser is an agency), or (c) a domain registered to either of the foregoing; (2) a physical address registered to the same entity or d/b/a from subsection (1); and (3) an Advertiser unsubscribe link.

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4.3     Social Campaigns.

Company may provide execution and management of ad buys with access to Advertiser’s (or Advertiser’s own client’s social media account) (the “Social Account”). Advertiser shall provide (i) a list of target brands or keywords (used in initial data collection); (ii) Ad Creative; (iii) campaign flight dates and destinations (iv) tracking codes; and (v) access to the Social Account as administrator. Company shall not modify or post to the Social Account or contact fans or followers of the Social Account except as otherwise requested by Advertiser. Payable actions shall be tracked by the social media publisher unless otherwise stated on the Order. Advertiser represents and warrants that its social media marketing activities shall fully comply with all applicable guidelines, policies and special provisions posted by such social media publisher.

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4.4     Ad Specifications.

Advertiser acknowledges and agrees that the Ads will meet the specifications specified by Company in advance of Campaign launch.

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4.5     License.

Advertiser grants Company and its third-party publishers a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Ad Creative in connection with its obligations hereunder.

 

5. Fees; Calculations.

5.1    Fees.

On a monthly basis, Company will invoice Advertiser and Advertiser will pay Company the Fees set forth in the associated Order. Advertiser will pay all within 30 days after receiving notification of their winning Bid and a Campaign is ordered. Failure to make timely payment and the featured Ad space would be forfeited.

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5.2    Cancellation Fees.

Company reserves the right to charge any and all costs incurred by Company in connection with a Creative Service Campaign or custom study where Advertiser terminates the Order, even when such costs were not separately listed on the Order.

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5.3    Payment Method.

Advertiser will pay all Fees in the currency specified in the applicable Order by check or by wire transfer to an account specified in writing by Company. Advertiser shall also be responsible for and shall pay any and all applicable sales taxes, consumption taxes, VAT or GST pertaining to the Fees. Late payments will be subject to late fees at the rate of one and a half percent (1.5%) per month, or, if lower, the maximum rate allowed by applicable law. Advertiser agrees to pay any attorney fees and collection costs incurred by Company in collecting any past due amounts from Advertiser.

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5.4    Calculations.

Company will be solely responsible for determining Fees and the sole arbiter in determining the number of impressions, clicks, actions, or other applicable metric, delivered, shown, produced, clicked on, or viewed unless otherwise indicated in the Order. Invoicing shall not be deemed final until invoices are received by Advertiser. Numbers provided prior to final invoicing via online portal or otherwise are tentative and subject to adjustment.

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6. Use of Company Data.

6.1    By Advertiser.

Advertiser acknowledges that, in the course of using the System, it may have access to information that is applicable to Company, such as the Targeting Criteria, and data about End Users (“Company Data”). Advertiser agrees to use Company Data solely in connection with this Agreement and to treat all Company Data as the Confidential Information of Company.

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6.2    By Company.

Company may use and disclose data derived from Advertiser’s use of the System (a) as part of Company’s business operations, on an aggregate basis (absent Advertiser’s prior consent) such that any use or disclosure does not permit a third party to associate any particular data with Advertiser; and (b) if required by court order, law, or governmental agency. In addition, Company may use Company Data to operate, manage, maintain, and improve the System. Company shall provide to Advertiser upon request a list of Data Aggregators that may be used for a given Advertiser’s Campaign.

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7. Term; Termination.

7.1    Term.

Unless terminated earlier or extended in accordance with this Section 7, this Agreement shall begin on the Effective Date and continue for the term set out in the Order (the “Term”).

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7.2    Suspension by Company.

Company may suspend this Agreement without prior notice (a) if Advertiser fails to pay Fees invoiced by Company within 30 days of winning a Bid or any missed payment due date; or (b) upon Company’s reasonable belief that Advertiser has breached any of its representations, warranties or covenants in Section 8.

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7.3    Termination By Company.

Company may terminate this Agreement (a) in the event of Advertiser’s material breach of this Agreement or Advertiser’s insolvency upon forty-eight (48) hours’ notice to Advertiser if such breach or insolvency remains uncured after the expiration of such forty-eight (48) hours’ notice period; (b) for convenience, on thirty (30) days’ prior written notice to Advertiser; or (c) immediately upon Company’s notice to Advertiser of Company’s reasonable determination that Advertiser is likely cause injury to Company or otherwise reflect unfavorably on the reputation of Company. If this Agreement is terminated by Company due to Advertiser’s breach, Advertiser is required to pay Company all Fees due under this Agreement within ten (10) days of the effective date of such termination.

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7.4    Termination By Advertiser.

Advertiser may terminate this Agreement in the event of Company’s material breach of this Agreement or Company’s insolvency, upon twenty-four (24) hours’ notice to Company if such breach or insolvency remains uncured after the expiration of such twenty-four (24) hours.

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7.5    Survival.

Sections 1, 3.3, 3.4, and 5 through 14 shall survive termination or expiration of this Agreement for any reason.

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7.6    Cancellation of Orders.

Advertiser agrees that it has no right to cancel a Campaign on performance grounds if Company has not received the third-party reports which were requested prior to the commencement of such Campaign.

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8. Representation, Warranties, and Covenants.

8.1    Mutual Representations, Warranties and Covenants.

Each Party hereto represents, warrants and covenants to the other Party that: (a) such Party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such Party, and the performance by such Party of its binding obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its representations, warranties, terms and conditions.

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8.2    Advertiser’s Representations, Warranties and Covenants.

Advertiser further represents, warrants and covenants that (a) Advertiser has and will have any and all necessary rights to allow Company to deliver the Ads on the Site; (b) no Ads placed by Advertiser will (i) infringe or misappropriate any third party’s Intellectual Property Rights; or (ii) breach any duty toward, or rights of, any third party, including rights of publicity or privacy; or (iii) be false, deceptive, misleading, unethical, defamatory, libelous, or threatening unlawful, harmful, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful, or racially, ethnically or otherwise objectionable; (c) Advertiser has substantiation for all claims made and shall fulfill all commitments set out in the Ad Creative; (d) Advertiser shall use collected End User data only for legal purposes; (e) if Advertiser collects End User medical condition data, Advertiser does so only with express consumer consent; (f) Advertiser is not targeting any Campaign to children age twelve or under; (g) Advertiser will not load computer programs onto a consumer computer without express consent and agrees that adware and spyware are prohibited; (h) Advertiser will comply with the IAB self-regulatory principles for online behavioral advertising; (i) Advertiser’s actions under this Agreement will comply with all applicable laws (including that Advertiser’s collection, use and storage of data shall comply with all applicable privacy laws); and (j) it will not use the System in a manner that reasonably could be expected to damage or cause injury to the System or otherwise reflect unfavorably on the reputation of Company. If Advertiser is an agency, it represents and warrants that it has the authority to bind its own client to the Order, and Advertiser and such client remain jointly and severally liable for all obligations under the Order.

 

9. Disclaimer.

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY THE PARTIES IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NO PARTY HERETO MAKES ANY REPRESENTATIONS OR WARRANTIES. THE SYSTEM IS MADE AVAILABLE TO ADVERTISER “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, TITLE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ADVERTISER FROM COMPANY OR THROUGH OR FROM THIS AGREEMENT SHALL CREATE ANY WARRANTY OR OTHER OBLIGATION NOT EXPRESSLY STATED IN THIS AGREEMENT.

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10. Limitations of Liability.

10.1    No Consequential Damages.

SUBJECT TO SECTION 10.3, TO THE MAXIMUM EXTENT A LIMITATION OF DAMAGES OR LIABILITY IS PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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10.2    Liability Cap.

SUBJECT TO SECTION 10.3, IN NO EVENT SHALL COMPANY’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHEN AGGREGATED WITH COMPANY’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) EXCEED THE TOTAL AMOUNT PAID BY ADVERTISER TO COMPANY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE. ADVERTISER AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION OR BE FOREVER BARRED.

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10.3    Exceptions from Exclusions and Limitations.

Nothing in this Agreement shall exclude or limit either Party’s liability for: (a) breaches of Section 12; (b) with regard to Advertiser, amounts owed under Section 5; (c) breaches of a Party’s indemnification obligations under Section 11 or any amounts paid or payable to third parties in connection with such obligations; or (d) in case of physical injury or health damages.

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10.4    Allocation of Risk.

The Parties agree that (a) the mutual agreements made in this Section 10 reflect a reasonable allocation of risk; and (b) that each Party would not enter into this Agreement without these exclusions and limitations on liability and the exceptions set forth above.

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11. Indemnification.

11.1    By Advertiser.

Advertiser shall indemnify, defend and hold harmless Company and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Company Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon the Company Parties or any one of them in connection with any third-party claim, suit, action, demand or judgment (“Claims”) (a) alleging any fact, which, if true, would constitute a breach by Advertiser of Section 8 or (b) Advertiser’s use of the System other than as permitted herein; provided, however, that in any such case Company will (i) provide Advertiser with prompt notice of any such claim (provided that the failure to provide prompt notice shall only relieve Advertiser of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit Advertiser to assume and control the defense of such action upon Advertiser’s written notice to Company of Advertiser’s intention to indemnify; and (iii) upon Advertiser’s written request, and at no expense to Company or its affiliates, provide to Advertiser all available information and assistance reasonably necessary for Advertiser to defend such claim. Advertiser will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any Company Party, without Company’s prior written consent, which will not unreasonably be withheld or delayed. Company shall have the right to participate in the defense with counsel of its choice at its own expense.

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11.2    By Company.

Company shall indemnify, defend and hold harmless Advertiser and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Advertiser Parties”) against any Losses incurred by or imposed upon the Advertiser Parties or any one of them in connection with any Claim alleging (a) any fact, which, if true, would constitute a breach by Company of Section 8 or (b) that the System infringes any Intellectual Property Rights (provided that such infringement is not due in whole or part to modifications made by Advertiser); provided, however, that in any such case Advertiser will, (i) provide Company with prompt notice of any such claim (provided that the failure to provide prompt notice shall only relieve Company of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (ii) permit Company to assume and control the defense of such action upon Company’s written notice to Advertiser of Company’s intention to indemnify; and (iii) upon Company’s written request, and at no expense to Advertiser, provide to Company all available information and assistance reasonably necessary for Company to defend such claim. Company will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any Advertiser Party, without Advertiser’s prior written consent, which will not unreasonably be withheld or delayed. Advertiser shall have the right to participate in the defense with counsel of its choice at its own expense.

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12. Confidentiality.

Each Party (a “Receiving Party”) understands that the other Party (a “Disclosing Party”) may disclose information of a confidential nature including, without limitation, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use (other than as expressly permitted under this Agreement) any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. If disclosure is made to the Receiving Party’s professional advisors, auditors or bankers this shall be done subject to Receiving Party procuring each such recipient’s agreement to keep such information confidential to the same extent as if such recipient were party to this agreement. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no violation of this Agreement by the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was or is received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with judicial or regulatory or governmental order or requirement or any tax authority to which the Receiving Party is subject or submits, wherever situated, whether or not the requirement for information has the force of law, the Receiving Party shall to the extent legally permitted promptly notify the Disclosing Party in order to allow the Disclosing Party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the other all of the Disclosing Party’s Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk or other form of documentation, or to certify to the Disclosing Party in writing that all such material has been destroyed.

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13. Proprietary Rights

13.1     Subject to express permission from Company, nothing in this Agreement gives Advertiser a right to use any of Company’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.

13.2     If Advertiser has been given express permission to use any of these brand features in a separate written agreement with Company, the use of such features shall be in accordance with that agreement and any applicable provisions.

13.3     Subject to express authorization in writing by Company, Advertiser agrees it will not use any trademark, service mark, trade name, logo of Company in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.

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14. Miscellaneous.

14.1    Publicity.

Any public announcement relating to the Agreement must fairly and accurately represent the Parties’ business relationship and must not conflict with this Agreement. Company may publicly refer to Advertiser (and Advertiser’s own client for the Campaigns) as a customer.

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14.2    Independent Contractors.

It is the intention of Company and Advertiser that Company and Advertiser are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Company and Advertiser.

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14.3    Entire Agreement.

This Agreement represents the entire agreement between the Parties with respect to the subject matter hereof and will supersede all prior agreements and communications of the Parties, oral or written, with respect to the subject matter hereof. In the event of conflict between this Agreement and the associated Order, the associated Order will prevail.

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14.4    Amendment; Waiver.

All changes to this Agreement will be binding on Advertisers immediately after they are initially posted on the Site or otherwise delivered to Advertisers, except that such amendment will not apply to any Orders placed prior to the posting of the amendment.  No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing published by Company.  The waiver by any Party of any breach or default will not constitute a waiver of any different or subsequent breach or default.

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14.5    Governing Law and Jurisdiction.

This Agreement will be governed by and interpreted (without regard to any conflict of laws principles or rules) in accordance with the laws of the State of Texas and subject to the exclusive jurisdiction of courts located in Dallas County, Texas.  You hereby agree to personal jurisdiction of the courts of Dallas County, Texas in connection with a dispute related to this Agreement or any Order or Campaign.

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14.6    Successors and Assigns.

This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning Party; provided that either Party may assign this Agreement without consent: (i) to any affiliated company if the standard of quality and compliance with this Agreement is guaranteed or (ii) in connection with the sale of all or substantially all its assets or other change of control transaction. This Agreement will be binding upon and will inure to the benefit of a Party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 14.6, including, without limitation, by operation of law, is void.

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14.7    Force Majeure.

No Party will be liable for failure to perform or delay in performing any obligation (other than the payment of money) under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), terrorist act, embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other similar cause beyond the control of such Party.

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14.8    Notices.

All notices, requests, consents, and other communications under this Agreement will be in writing, and will be delivered by e-mail to Company at: info@citywidespotlight.com, or to Advertiser at the email provided at registration as a Spotlight Challenger or Spotlight Champion;  or such other address as each Party specifies to the other Party in writing by notice given in accordance with this Section 14.8. Notices provided in accordance with this Section 14.8 will be deemed delivered: (a) immediately if delivered by hand or sent by e-mail; or (b) if sent by overnight courier service or express mail, upon delivery (as reported by the courier or postal service).

 

14.9    Severability.

If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.

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Company Advertising and Creative Guidelines

 

Advertiser shall abide by each of the following guidelines with respect to its Ads. If Advertiser breaches any of the guidelines below as determined by Company in its sole discretion, Company may suspend and/or terminate your account without notice to you. Contact the Legal Department if you have any questions. 

Attribution

All ads must include the name of the program that placed or purchased the ad.

Business Opportunities 

These include offers for work-at-home, vending machines, display racks, pay phones, “get rich quick,” day trading and medical billing opportunities. The ad will be canceled upon the first consumer complaint. In addition, the ad must not:

• Promise good pay in a short period of time with little effort.

• Make high earnings claims.

• Tout an atypical result without informing consumers that the result is not typical.

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Children Under 18 – Ads Targeting 

The ad must not:

• Promote an adult product, service or behavior or be otherwise inappropriate for children.

• Seek to take advantage of children’s inexperience or naïveté. If the ad or its landing page collect personal information from children under 13:

• The advertiser must certify that it is Child Online Privacy Protection Act (“COPPA”)-compliant.

 

Credit Offers 

The ad must not:

• Offer extremely low rates or payments.

• Promise that it can get consumers the lowest rates available.

• Offer loans for free, at no cost or without fees.

• Promise success in obtaining a loan for a consumer, in exchange for an advance fee.

For ads promoting mortgages and refinances, the ad must clearly disclose the items below, if the ad includes: (1) the amount of any payment; (2) the number of payments or period of repayment; (3) the amount of any finance charge; or (4) the amount of any down payment:

• the amount of any down payment;

• the length of the loan and the amount of each payment; and

• the annual percentage rate.

 

Deceptive Ads 

The ad must not:

• Mislead, deceive, or confuse users, including misleading users into visiting another site or downloading files.

• Be distinguishable from website content (i.e. the ad must not make it difficult for users to tell whether it is looking at website content or ad content).

• Contain malicious or exploit code.

• Change/replace the links of the site/in the site.

• Where applicable, in-text link shall be clear and obvious to users.

 

Dietary Supplements These include vitamins, minerals, amino acids, enzymes, herbs, and animal extracts. The ad must not promote: ephedra (ma huang), chaparral, comfrey, lobelia, germanda, L-tryptophan, willow bark, germanium, dieter’s teas or magnolia-stephania preparations. The ad must not claim that the product:

• Can cure or treat a disease, including (but not limited to) cancer, AIDS, AD/HD, Alzheimer’s, tumors, insomnia, arthritis or impotency.

• Can cure a wide range of ailments.

• Is a natural or safe alternative to prescription drugs.

 

E-mail Promoters

The advertiser must certify that it complies with the CAN SPAM Act.

“Free” Offers 

The ad must clearly disclose:

• Any required purchase.

• Any other important conditions on receiving the “free” item. If these non-purchase conditions appear by link or on the landing page, the ad must clearly state “conditions apply.”

 

Free Trial Offers 

The ad must clearly disclose or link to:

• The length of the free trial period.

• How to cancel, and by when, to avoid any charge.

• If, after the trial, the consumer will receive periodic product shipments:

  • The total cost of each shipment;

  • The frequency of shipments;

  • Any minimum purchase requirement; and

  • Any other important conditions of the offer.

 

Functionality 

The ad must:

• Ensure that any action taken by a consumer with respect to the ad (e.g., clicking on a certain spot) must not surprise him/her.

• Not invoke a file download (no direct download/auto download).

• Mouse over links cannot take users away from the page (i.e. mouse hover must not function as a click).

 

Gambling

• Gambling is prohibited, unless authorized in advance by Company in writing.

 

Gray Box Ads (For example, ads that look like “Caution” or “Warning” notices) 

The ad must:

• Clearly and conspicuously disclose, inside the creative, that it is an ad.

• Ensure that any action taken by a consumer with respect to the ad (e.g., clicking on a certain spot) must not surprise him/her.

 

Illegal Products

Ads for products that assist a person in breaking the law are prohibited. This would include, for example, an ad for a product that could help someone pass a drug test.

Hate

Ads for any group that is involved in hate speech or acts are prohibited.

Health or Safety Claims The ad must not:

• Make claims touching on health or safety that are too good to be true.

• Make claims that could reasonably involve a risk to health or safety. The ad must:

• Include information about any significant risks associated with the product.

 

JS Pops

Entry JS pops on an Advertiser’s landing page are prohibited. JS pops upon exiting a landing page are allowed.

Online Pharmacies 

The promotion, sale, import, export, and distribution of medical products, including drugs, medical devices, and biologics, is strictly regulated by federal and state laws and regulations. If you are an Advertiser of such products, by participating in the Advertising Platform, you represent that you fully comply with all federal and state laws and regulations governing such products including, but not limited to, the U.S. Federal Food, Drug, and Cosmetic Act. 

Pornography

Ads for or including pornography are prohibited.

Provocative Content

• Ads containing nudity, obscenity, or dirty language are prohibited.

• Ads containing provocative content must be assigned a warning so that our member publishers may decide whether or not it is appropriate for their sites.

 

Software 

Ads for “spyware” (adware) are prohibited. We define “spyware” as software that merely displays advertising. Ads for a product that is downloaded onto the user’s machine are acceptable only if:

• The download begins only after the user clicks through to the advertiser’s website (i.e., no automatic downloads);

• The user is required to affirmatively agree to the download in order for it to begin; and

• Prior to agreeing to the download, the user is clearly told: (1) exactly what product(s) will be installed; and (2) exactly how the downloaded product(s) will function, including what personal information, if any, it/they will collect and/or use.

 

Scareware

Ads with landing page warnings, alerting, or suggesting than an end user has any kind of computer virus or threats are prohibited.

Sweepstakes & Contests 

The ad must not:

• State or imply that a person has already won, without disclosing all conditions on receipt of the prize.

• Require a purchase to enter a sweepstakes (a game of chance).

The ad must:

• State how to enter and by when.

• Direct consumers to the official rules.

• State that no purchase is necessary (for a sweepstakes).

 

Telecommunications Products and Services 

The ad must clearly disclose or link to:

• Activation or initiation fees;

• Any recurring charges;

• Any required contract term;

• Any early termination fees;

• The number of peak and off-peak minutes and the hours they apply;

• Charges for excess minutes;

• Whether charges apply for calls that are out of network or out of a certain geographic area;

• Whether the offer is for only a limited period and, if so, the fees for the remainder of the contract; and

• Any additional fees, taxes or surcharges and the amount of these kept by the carrier.

 

Testimonials 

The testimonial must not:

• Make a claim that is too good to be true.

The testimonial must:

• Be made by an actual user of the product and reflect his/her honest opinions.

• Make a claim that is true for every consumer, unless there’s an adequate disclosure.

 

Trademarks or Logos – Use of a Third Party’s 

The ad must not use them in a way that could:

• Negatively reflect on the third party or its brand.

• Lead to consumer confusion between the third party and the Advertiser.

• Imply sponsorship, endorsement or affiliation between the Advertiser and the third party.

Health or Safety Claims 

The ad must not:

• Make claims touching on health or safety that are too good to be true.

• Make claims that could reasonably involve a risk to health or safety.

 

Weight Loss Products or Plans 

The ad must not state or imply that:

 

• The product or plan will lead to substantial weight loss for all users.

• The product or plan will lead to permanent weight loss.

• Users can eat as much as they want or whatever they want and lose weight.

• The product leads to substantial weight loss without the need for diet or exercise.

• Users can lose fat from specific body parts.

• The product blocks or absorbs fat or calories.

• The product causes the user to lose weight when applied to the body or skin (e.g., a cream or patch).

• Users can lose more than three pounds per week for more than four weeks.

• Tout an atypical result without informing consumers that the result is not typical.

 

 

Law

The ad must not violate any law applicable to Company or Advertiser.