Please read carefully the following legally binding Advertiser Agreement between Citrus Ad International Ltd, a Delaware company (Citrus) and Advertiser for use of Citrus’ online advertising platform as described in the Service Description (System) and the Services. By clicking the “I Accept” button (or any button or check box having similar wording or meaning) or using the System or the Services, Advertiser acknowledges that Advertiser has read, understands, and agrees to be bound by the terms of this Advertiser Agreement. If Advertiser does not agree with the terms of this Advertiser Agreement, Advertiser should not register for the Services or use the System or the Services. Certain capitalised terms in this Advertiser Agreement are defined in clause 12 below.
The following provisions may be subject to consumer protection laws, including the Australian Consumer Law, which may limit the ability to exclude liability or may imply warranties or conditions or impose obligations which cannot be modified, restricted or excluded (except to a limited extent). Any disclaimer of warranties and liability limitations applies subject to any rights you may have under such laws.
Advertiser must complete the account registration form on the Advertiser signup page of the Website in order to use the System and the Services. Advertiser will provide true, accurate, current, and complete information as requested in the account registration form. Citrus reserves the right to refuse registration of, or cancel, accounts it deems inappropriate for any reason in its sole discretion. The System and the Services are available only to persons who can form legally binding contracts under applicable law. Advertiser’s use of the System and the Services is subject to Citrus approving Advertiser’s account registration and allocating an account to Advertiser (Account). Citrus will notify Advertiser upon establishment of the Account. Advertiser may only have one Account which will apply to its interaction with all Customers on the System. Advertiser warrants that no unauthorised user will have access to the Account.
As part of the registration process, Advertiser will provide valid credit card details or other agreed payment arrangements to allow for the payment of Fees and an email address and password for its Account. Advertiser is responsible for maintaining the security of its Account, passwords, private keys, API keys and for all uses of the Account and the use of the System and the Services.
Advertiser may configure Campaigns and submit them into the System in accordance with the Documentation. Once a Campaign has been submitted to the System the System will automatically make bids on behalf of the Advertiser for its Ads to be displayed on one or more positions on one or more Sites (Bids). The Bids will be consistent with the configuration established by Advertiser for each Campaign. If a Bid from Advertiser is accepted by the System, Advertiser’s Ad will be displayed on the Site or Sites or in the agreed position or positions on the Site or Sites and Advertiser must pay the the Click Fees in relation to the display of that Ad on a Site.
Advertiser acknowledges and agrees that the Bid seeking, making and acceptance process is automated by the System subject to the configurations set by Customers in the System and the configurations set by Advertiser for each Campaign. Once a Bid is entered into the System by or on behalf of Advertiser it may not be withdrawn and the Bid represents an offer made to Citrus to display the Ad on the terms of the Bid which, if accepted by the System, becomes a binding agreement to display the Ad on the terms of the Bid and this Advertiser Contract, including in relation to the payment of Fees.
Advertiser is liable for all Fees payable in connection with a Bid entered into and accepted by the System in all circumstances including if the Bid is made in error or if the Bid has not been authorised by Advertiser (Disputed Bid) except where the Disputed Bid has been caused by the negligence, fraud or misconduct of Citrus, a breach of this Advertiser Agreement by Citrus or errors in the System.
Advertiser must not provide Ads containing malware, spyware or any other malicious code or knowingly breach or circumvent any System security measure.
Unless a Policy, the Documentation, the System user interface or this Advertiser Agreement provides otherwise, either party may cancel any Ad at any time before the earlier of Ad auction or placement, but if Advertiser cancels an Ad after a commitment date provided by Citrus (such as a reservation-based campaign), then Advertiser is responsible for any cancellation fees communicated by Citrus to Advertiser (if any) and the Ad may still be published. Cancelled Ads will generally cease serving within 8 business hours or as described in a Policy or system user interface, and Advertiser remains obligated to pay all Fees resulting from served Ads. Advertiser must effect cancellation of Ads:
(a) online through the Account if the functionality is available;
(b) if this functionality is not available, with notice to Citrus via email to Advertiser’s account representative; or
(c) if Advertiser does not have an account representative, with notice to Citrus via email to firstname.lastname@example.org.
Advertiser must pay the Fees to Citrus at the time or times determined by Citrus or as otherwise set out in the Documentation. The Fees and Discount Amounts exclude GST or any other applicable taxes.
At the time that Advertiser submits a Campaign to the System, Advertiser will specify a budget amount for the Campaign (Campaign Budget) which is the maximum amount of Fees (including GST and taxes) that Advertiser is prepared to pay in relation to the Campaign. At the time that Advertiser submits a Campaign to the System, Advertiser authorises Citrus to deduct such amount from Advertiser’s credit card so that the balance of Advertiser’s Account is equal to the Campaign Budget. Citrus may aggregate deductions from Advertiser’s credit card for multiple Campaigns so that the balance of Advertiser’s Account at any time and from time to time will be equal to the aggregate of all Campaign Budgets for all of Advertiser’s current and outstanding Campaigns in the System. Advertiser acknowledges and agrees that a Campaign will cease once the Campaign Budget for that Campaign has been fully expended.
Advertiser authorises Citrus to deduct all Fees and any GST or other applicable taxes from Advertiser’s Account.
An amount credited to Advertiser’s Account under clause 5.2 is not refundable unless otherwise provided in this Advertiser Contract. If an amount credited to Advertiser’s Account under clause 5.2 is not fully utilised during the course of a Campaign, the balance will remain to the credit of Advertiser’s Account and be available for use in future Campaigns. Any such credits must be used within 12 months from the date they were credited to Advertiser’s Account whereupon they will lapse without liability to Citrus.
Advertiser must provide Citrus with accurate and complete billing and credit card information and Advertiser must keep this information up to date.
Citrus will not deliver or send invoices for the Fees to Advertiser but such invoices will be available to view or download from the Website.
If Citrus is unable to effect automatic payment from Advertiser’s credit card to Advertiser’s Account or is otherwise unable to collect any Fees or other charges due from Advertiser, Citrus may suspend Advertiser’s access to the System and the Services without giving Advertiser notice. This does not affect any termination right under clause 6.3.
Advertiser is responsible for paying all taxes associated with the Services and its access to the System, excluding taxes based on Citrus’ net income or property. If Citrus has the legal obligation to pay or collect taxes for which Advertiser is responsible under this clause, the appropriate amount shall be invoiced to and paid by Advertiser in accordance with this Advertiser Agreement.
The calculation of Fees will be based on Citrus’ records and accounting. The Fees are solely based on Citrus’ measurements from the System and the applicable billing metrics (e.g. click fees). Any portion of a Fee not disputed in good faith must be paid by Advertiser in full. Advertiser may not offset any payment due under this Advertiser Agreement against any payment due from Citrus. Citrus is not obligated to deliver or serve any Ads if there is insufficient balance in Advertiser’s Account to pay the Fees or Discount Amounts for such Ads.
If Citrus does not deliver Ads to the selected Sites and Targets pursuant to a Bid accepted by the System then, subject to clauses 10.1 and 10.2, Advertiser must make a claim for credit to its Account within 60 days after the invoice date (Claim Period), after which Citrus will issue the credit following claim validation by Citrus.
The parties acknowledge that third parties may generate impressions or clicks on Ads for prohibited or improper purposes and that if this occurs, subject clauses 10.1 and 10.2, Advertiser must make a claim for credit to its Account within the Claim Period, after which Citrus will issue the credit following claim validation by Citrus.
If Advertiser otherwise disputes any Fees relating to the Services, Advertiser must notify Citrus in writing within the Claim Period and, subject clauses 10.1 and 10.2, if Advertiser does not, any claim relating to the disputed Fees will be waived.
This Advertiser Agreement shall remain in force either until the earlier of:
(a) termination by Advertiser under clause 8;
(b) termination by Citrus under clause 6.2; or
(c) termination by Citrus under clause 6.3.
Citrus may terminate this Advertiser Agreement, or suspend or terminate Advertiser’s access to the System and the Services, at any time by giving Advertiser written notice of termination.
Without prejudice to any other rights, Citrus may terminate this Advertiser Agreement if Advertiser breaches any term of the Advertiser Agreement including without limitation, the warranties in clause 1, by giving Advertiser written notice of Advertiser’s breach and Citrus’s decision to terminate this Advertiser Agreement.
Upon termination of this Advertiser Agreement: (a) Advertiser must immediately pay all Fees outstanding or otherwise payable under this Advertiser Agreement including any administration charges payable by Advertiser on termination (as set out in the Service Description); (b) Advertiser will not be entitled to a refund of the balance of Advertiser’s Account and Citrus may close the Account; and (c) Advertiser must cease to use the System and the Services.
Advertiser’s obligations and Citrus’s rights under this Advertiser Agreement with respect to clauses 5, 4, 7, 7.3, 9, 10 and 11 shall survive any expiration or termination of this Advertiser Agreement.
The System and the Services utilise proprietary and confidential information of Citrus and its licensors, including copyrights which are protected by international copyright laws, inventions which are protected by patents or patents pending, trade secrets and trademarks (Citrus IP). Title to and ownership of the Citrus IP, including, without limitation, all Intellectual Property Rights in and to the Citrus IP, are and shall remain the exclusive property of Citrus and its licensors, and except for the limited license granted to Advertiser by Citrus, Citrus reserves all right, title and interest in and to the Citrus IP. Advertiser shall not take any action to jeopardise, limit or interfere with Citrus and its licensors’ ownership of and rights with respect to the Citrus IP. Advertiser acknowledges that any unauthorised copying or unauthorised use of the Citrus IP is a violation of this Advertiser Agreement and is strictly prohibited. Any bug reports, usability reports, test results, feedback made by Advertiser in relation to the Services shall be the sole property of Citrus and its licensors and may be used by Citrus and its licensors for any purpose.
If Citrus provides Advertiser with software in connection with the Services, Citrus grants Advertiser a limited non-exclusive, non-sublicensable licence for use of such software. This licence is for the sole purpose of enabling Advertiser to use and enjoy the benefit of the System and the Services, in the manner permitted by this Advertiser Agreement. Advertiser must not copy, modify, distribute, sell or lease any part of the System or Services or included software, nor may Advertiser reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or Advertiser has the written permission of Citrus. Advertiser must not remove, obscure or alter Citrus’ copyright notice or other proprietary rights notices affixed to or contained within any Citrus services, software or documentation.
The parties acknowledge that Advertiser will provide Citrus with, or access to, the Content, Targets and Landing Pages and other content (Advertiser Content) in order to allow Citrus to provide the Services. Advertiser grants Citrus and Customers a license to use the Advertiser Content for the purposes of performing the Services.
Advertiser acknowledges that all data collected by Citrus from Advertiser in connection with the provision of the System and the Services will be owned by Citrus.
Advertiser represents, covenants, and warrants to Citrus that (a) it will use the System and the Services only in compliance with this Advertiser Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, and defamation); (b) it will not use the Services for any unlawful or discriminatory activities; (c) it will comply with the Policies; and (d) it owns, or is otherwise authorised to use, and permit Citrus and Customers to use, all Intellectual Property Rights in the Advertiser Content.
If Citrus has reasonable grounds to suspect that Advertiser’s representations, covenants and warranties given under clause 8.1 are inaccurate or breached, Citrus may terminate this Advertiser Agreement, deny any or all use of the System and the Services, and pursue any appropriate legal remedies.
Advertiser agrees to indemnify, hold harmless and defend Citrus and its affiliates, parent companies, subsidiaries, officers, directors, employees, agents, business partners and licensors at Advertiser’s expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by Citrus arising out of or relating to Advertiser’s (a) violation or breach of any term of this Advertiser Agreement, including without limitation, any breach of Advertiser ’s representations, covenants and warranties given under clause 8.1; (b) the negligence or intentional misconduct of Advertiser; or (c) use or misuse of the System or the Services by or on behalf of Advertiser. Citrus reserves the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by Advertiser and Advertiser shall not, in any event, settle any matter without the prior written consent of Citrus.
Advertiser acknowledges that in connection with Advertiser’s use of the System and the Services and this Advertiser Agreement, Advertiser will be provided with confidential and proprietary data and information from time to time (Confidential Information). Such Confidential Information shall be owned by Citrus and its licensors.
Advertiser will keep all Confidential Information provided to Advertiser by Citrus, or otherwise, strictly confidential. Advertiser may disclose any such Confidential Information only to Advertiser’s employees, officers and directors who need to know such information in order to perform their respective duties; provided that each such person has a legal or contractual obligation to maintain the confidentiality of such Confidential Information. Without Citrus’s prior written consent, Advertiser will not disclose any such Confidential Information to any third party (except Advertiser’s employees, officers and directors as set forth above) or use any such Confidential Information other than solely as and to the extent required for Advertiser to use the Services and otherwise perform its obligations under this Advertiser Agreement.
If Advertiser receives any document request, interrogatory, subpoena or other legal process (Request) that would, by its terms, require the disclosure of any Confidential Information protected by this Advertiser Agreement, then promptly upon receipt thereof, and prior to making any response thereto, to the extent permitted by applicable law, Advertiser will notify Citrus in writing of Advertiser’s receipt of such Request, and shall provide a copy thereof.
Upon Citrus’s request or expiration or early termination of this Advertiser Agreement, Advertiser must immediately return or destroy any and all Confidential Information in Advertiser’s possession or under Advertiser’s control. If requested, Advertiser will certify in a writing signed by an authorised officer as to the return or destruction of all such Confidential Information.
NO WARRANTY: ADVERTISER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SYSTEM AND THE SERVICES IS AT ITS SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SYSTEM AND THE SERVICES PERFORMED OR PROVIDED ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CITRUS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SYSTEM AND THE SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CITRUS OR ITS AUTHORISED REPRESENTATIVES SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY. CERTAIN LEGISLATION, INCLUDING THE AUSTRALIAN CONSUMER LAW, MAY GIVE GUARANTEES OR IMPLY WARRANTIES OR CONDITIONS OR IMPOSE OBLIGATIONS WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED EXCEPT TO A LIMITED EXTENT. THESE TERMS MUST IN ALL CASES BE READ SUBJECT TO THESE STATUTORY PROVISIONS.
LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CITRUS BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO ADVERTISER’S USE OF OR INABILITY TO USE THE SYSTEM OR THE SERVICES, HOWEVER CAUSED, OR UNAUTHORISED USE OF THE ACCOUNT REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF CITRUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY. CERTAIN LEGISLATION, INCLUDING THE AUSTRALIAN CONSUMER LAW, MAY LIMIT THE ABILITY TO EXCLUDE LIABILITY. IF CITRUS IS LIABLE UNDER THE AUSTRALIAN CONSUMER LAW OR SIMILAR LEGISLATION, TO THE EXTENT TO WHICH CITRUS IS ENTITLED TO DO SO, CITRUS LIMITS ITS LIABILITY IN RESPECT OF ANY CLAIM UNDER THOSE PROVISIONS TO: IN THE CASE OF GOODS, AT CITRUS’S OPTION: THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; THE REPAIR OF THE GOODS; THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND, IN THE CASE OF SERVICES, AT CITRUS’S OPTION: THE SUPPLYING OF THE SERVICES AGAIN; OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
No oral or written information or advice given by Citrus, its resellers, agents or employees shall create a warranty or in any way increase the scope of any warranty provided herein.
Citrus reserves the right to alter its relevancy calculation at any time, including but not limited to how an ad is scored and the final pricing of an ad.
To the maximum extent permitted by applicable law, neither Citrus nor any of its resellers, suppliers, agents or contractors will be responsible to Advertiser or any other person in connection with: (a) the suspension of or restriction to the System or the Services in accordance with this Advertiser Agreement or any interruption or delay to the System or the Services caused by matters outside of Citrus’ reasonable control; (b) any errors, viruses or bugs present in or arising from the use of the System or the Services that are not directly caused by or attributable to Citrus; (c) any incompatibility of the System or the Services with any other software, hardware or material; (d) any misuse or failure of the System or the Services; (e) any loss caused by Advertiser or any other person suffered as a result of: (i) any misuse or unauthorised use of the login details for Advertiser’s Account; (ii) any other cause where the cause is outside Citrus’ reasonable control; or (iii) Advertiser’s own negligence or failure to follow Citrus’ reasonable instructions.
Advertiser hereby agrees that Citrus would be irreparably damaged if the terms of this Advertiser Agreement were not specifically enforced, and therefore Advertiser agrees that Citrus shall be entitled to appropriate equitable remedies in any court of competent jurisdiction with respect to breaches of this Advertiser Agreement, in addition to such other remedies as Citrus may otherwise have available to it under applicable laws.
This Advertiser Agreement, including accepted Bids and any amendments hereto, contain the entire agreement of the parties with respect to the subject matter of this Advertiser Agreement and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof.
Any notice under this Advertiser Agreement must be given in writing. Citrus may provide notice to Advertiser via email, to the email address provided by Advertiser at registration or as updated by Advertiser through the Website from time to time, or through the Account. A notice given by Citrus will be deemed given upon the first business day after it is sent. Advertiser may provide notice to Citrus by email to email@example.com or via the Website. A notice given by Advertiser is deemed given upon receipt by Citrus.
Nothing in this Advertiser Agreement shall constitute a partnership, agency or joint venture between Advertiser and Citrus.
The failure of Citrus at any time or times to require performance of any provision of this Advertiser Agreement shall in no manner affect its right at a later time to enforce the same unless the same is waived in writing.
Advertiser may not assign this Advertiser Agreement or any rights hereunder. Citrus may assign this Advertiser Agreement to a related body corporate of Citrus, at Citrus’s discretion, without consent of or notification to Advertiser.
Citrus may amend the terms and conditions of this Advertiser Agreement from time to time, including any documents incorporated by reference. If an amendment meaningfully reduces Advertiser’s rights, Citrus will use reasonable endeavours to notify Advertiser (by, for example, sending an email to the billing or technical contact you designate in your account registration form or through Advertiser’s Account). If Advertiser objects to the amended Advertiser Agreement, as its exclusive remedy, Advertiser may choose to cancel the Services under clause 7.
If any provision of this Advertiser Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability will attach only to that provision or part and the rest of such provision, and all other provisions of this Advertiser Agreement will continue in full force and effect.
This Advertiser Agreement is governed by the laws of the State of New South Wales, Australia, without regard to choice of law principles. All disputes arising out of or related to Advertiser’s use of the System or the Service and/or this Advertiser Agreement shall be subject to the exclusive jurisdiction of the courts located in Sydney, Australia. Advertiser agrees to submit to the personal jurisdiction and venue of such courts.
Unless defined elsewhere in this document, capitalised terms have the following meanings:
Account Details means the details of the Advertiser’s Account accepted by Citrus under clause 1, as amended from time to time.
Advertiser means the subscriber for the Services under this Advertiser Agreement, as detailed in the Account Details.
Advertiser Agreement means this Advertiser Agreement and any documents incorporated herein by reference.
Campaign means a single campaign by Advertiser to serve an Ad or Ads on a Site or Sites through the System. A Campaign may also offer discounts off the price of Advertiser’s products available from a Site or Sites or offer free samples.
Click Fees means the fee payable by the Advertiser when a user clicks on an Ad of the Advertiser or as determined by Bids accepted through the System. In this context, a click will include any action taken across any device (desktop, mobile, tablet) in both browser and mobile app environments to initiate a redirect to the details page of an Ad, to find out more information about the product (product detail page) the subject of the Ad or to put the product the subject of the Ad into the user’s cart.
Customers mean online retailers to whom the Advertiser supplies products that are subscribers to the System.
Documentation means the resources and documentation that Citrus makes available to Advertiser through the current versions of Citrus’ support pages, API documentation, and other pages on the Website.
Fees mean Click Fees, Impression Fees, Service fees and any other fees and charges payable by Advertiser as set out in the Developer Documentation located at https://developers.citrusad.com or specified in any Citrus Insertion/Purchase Order. Click fees are proprietary to Citrus and are calculated using a second price methodology combined with a relevancy scoring system that weights the value of the bid price based on how relevant an Ad is compared to the Ad that ranks second to it in the auction. Further details on how the ad scoring calculation works can be found in clause 1(a) and 1(b) of the Retailer terms and conditions located at https://citrusad.com/ad-network-terms
Intellectual Property Rights mean any and all present and future intellectual and industrial property rights and includes, without limitation, any registered or unregistered forms of copyright (and rights allied to copyright and any reversions and extensions of copyright), designs, patents, trademarks, service marks, domain names, good will and any commercial information (including know how and confidential information), any application or right to apply for registration of any of these rights, any rights protected or recognized under any laws throughout the world related to the above or any similar laws, and anything copied or derived from such property or rights.
Service Description means the description of the System and the Services as set out in the Documentation from time to time.
Services means providing access to the System together with associated support services, as further described in the Service Description.
Website means Citrus’ website at www.citrusad.com, or such other website or websites notified by Citrus to Advertiser from time to time.