Please carefully read the following legally binding Gopuff Ads Platform Terms and Conditions (“Agreement”) between GoBrands Inc. d/b/a Gopuff, (“Gopuff”) and Advertiser for use of the Platform as described below. By clicking the “I Accept” button (or any button or check box having similar wording or meaning) or using the Platform, Advertiser acknowledges that Advertiser has read, understands, and agrees to be bound by the terms of this Agreement. If Advertiser does not agree with the terms of this Advertiser Agreement, Advertiser should not register for the Services or use the Platform.
“Ad(s)” means advertisements provided or selected by Advertiser and displayed within the Gopuff App.
“Advertiser” means the entity agreeing to these terms and conditions and accessing the Platform. For the avoidance of doubt, “Advertiser” refers to the business entity on whose behalf Ads are being purchased and displayed. All representations and warranties made in this Agreement are made by and on behalf of such business entity.
“Citrus” means CitrusAd International Ltd.
“Gopuff App” means the Gopuff mobile app and associated technology.
“Intellectual Property Rights” means all intellectual property rights comprising or relating to: (a) patents; (b) trademarks; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world.
“Inventory” means all Sponsored Search and Sponsored Product inventory within the Gopuff App.
“Payment Account” means a digital wallet established and maintained on the Platform, for the payment of Gopuff Fees.
“Platform” means the retail advertisement platform owned and operated by Citrus on behalf of Gopuff.
“Sponsored Products” means priority placement within the product carousel or other category location within the Gopuff App.
“Sponsored Search” means priority placement within the Gopuff App search results for search terms selected by Advertiser.
Access, Self-Service. Subject to the Agreement:
Gopuff will provide Advertiser with login credentials to use the Platform. Advertiser acknowledges and agrees that access to the Platform is contingent on Advertiser’s ongoing compliance with any additional terms and conditions imposed by Citrus, and that it is Advertiser’s responsibility to comply with (and cause its employees, contractors, and representatives to comply with) this Agreement and any additional Citrus terms and conditions.
Advertiser may use the Platform to design campaigns and bid on Inventory. By bidding on Inventory, Advertiser authorizes Gopuff to place Ads on any Inventory for which Advertiser secures the winning bid, and agrees to pay the winning bid rate for Ad delivery on such Inventory. Advertiser is solely responsible for Ad targeting decisions (e.g., targeted search terms).
Advertiser may create additional user accounts on the Platform, however Advertiser remains responsible and liable for any such users’ compliance with the terms hereof.
Performance. To the extent permitted by applicable law, Gopuff does not guarantee the performance of Ads or that Ads will reach the audience targeted. Gopuff makes no warranties of any kind, and expressly disclaims any liability for the functionality or accessibility of the Platform.
Changes to Gopuff App. Gopuff will use commercially reasonable efforts to provide Advertiser at least ten (10) business days prior notification of any material changes to the Gopuff App or the Platform that would materially change the target audience or materially affect the size or placement of an Ad. Should such a modification occur with or without notice, Advertiser’s sole remedy for such change shall be to cancel the remainder of the affected campaign without penalty within the 10-day notice period. If Gopuff has failed to provide such notification, Advertiser may cancel the remainder of the affected campaign within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
Editorial Adjacencies. Gopuff acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, or contains obscene language (“Editorial Adjacency Guidelines”). Gopuff will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Gopuff App, although Gopuff will always retain editorial control over the Gopuff App. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Gopuff remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Advertiser for such Ads. After the Advertiser notifies Gopuff that specific Ads are in violation of the Editorial Adjacency Guidelines, Gopuff will make commercially reasonable efforts to correct such violation within 48 hours.
Advertiser will pay the fees incurred for Ads displayed in the Inventory, at the winning bid amount for such placement (“Fees”). Fees will be invoiced monthly (invoices will be available on the Platform, Gopuff will not send invoices to Advertiser).
Advertiser will establish and maintain a Payment Account through the Platform (pursuant to a separate agreement between Platform and Advertiser) and authorizes the Platform operator to release monthly payments to Gopuff in satisfaction of Fees.
Advertiser acknowledges and agrees that having insufficient funds in its Payment Account to pay Fees constitutes a material breach of this Agreement.
Reporting. Ad and campaign performance reporting will be provided through the Platform. Gopuff will not provide any additional reporting to Advertiser. If both parties are tracking delivery, the measurement used for determining fees will be the Platform reporting.
The term of this Agreement commences on the date Advertiser first uses the Platform (the “Effective Date”) and continues until terminated (“Term”).
Advertiser may terminate this Agreement at any time by discontinuing use of the Platform.
Gopuff may terminate this Agreement immediately if Advertiser is in breach of the Agreement or any representation, warranty, or covenant herein.
Upon the effective date of termination, Gopuff will revoke Advertiser’s access to the Gopuff App Inventory through the Platform. Any expiration or termination of this Agreement will not affect any rights or obligations of the parties that (a) come into effect upon or after such expiration or termination, or (b) otherwise survives expiration or termination. Termination of this Agreement will not constitute a waiver of any of either party’s rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.
Representations and Warranties. Advertiser represents, warrants, and covenants that, as of the Effective Date and continuing throughout the Term:
where Advertiser is using the Platform to bid or place Ads on behalf of a third party that is not a signatory to this Agreement (each a “Client”):
it has the authority from its Client to make all required representations and warranties or grant any licenses or other permissions or authority under this Agreement and to bid on, purchase, and place Ads on behalf its Clients;
all of Advertiser’s actions related to this Agreement will be within the scope of such authority; and
Advertiser shall be solely responsible and liable for compliance with the terms of this Agreement by itself and its Clients, including, but not limited to, all payment obligations under this Agreement.
it shall comply at all times, at its own expense, with the provisions of all applicable federal, state, county and local laws, ordinances, regulations, and codes, as well as all non-U.S. laws, applicable to Advertiser’s use of the Platform under this Agreement and shall at all times refrain from engaging in any illegal, unfair, unethical or deceptive business practices.
it is and shall continue to be duly formed, validly existing and in good standing under the laws of its jurisdiction of organization; it has and shall continue to have all requisite power and authority to execute, deliver and perform its obligations under this Agreement; the execution and performance of this Agreement have been duly authorized by all requisite corporate action; and this Agreement constitutes the legal, valid and binding agreement of Advertiser, enforceable against Advertiser in accordance with its applicable terms.
With respect to Ads:
any claims contained in Ads for its products used in connection with this Agreement shall not be false or misleading. Advertiser has in its possession adequate and sufficient data to establish the truthfulness of any and all advertising and labeling claims and that past usage of the same or similar claims has occurred without, to such a party’s knowledge, any objections by the Federal Trade Commission, Food and Drug Association, or any other local, state or federal government agency;
the Ads do not and will not infringe upon any third party intellectual property or proprietary right;
the Ads do not and will not slander, defame or libel any person or entity; and
Advertiser shall not, without prior written approval of Gopuff, initiate a campaign or attempt to serve any Ad for alcoholic beverages, or on behalf of any manufacturers and wholesalers of alcoholic beverages.
Advertiser shall indemnify, defend and hold harmless Gopuff, its respective successors and permitted assigns (collectively, “Gopuff Indemnified Party(ies)”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification under this Agreement (collectively, “Losses”), incurred by any Gopuff Indemnified Party as a result of, arising from or related to (a) the breach or non-fulfillment of any term or condition of this Agreement by Advertiser, (b) the failure of any representation, warranty, or covenant made hereunder, (c) any claim of infringement of third-party rights arising out of Gopuff’s use of Advertiser’s intellectual property in accordance with this Agreement, (d) any unauthorized use or disclosure of Gopuff’s Confidential Information that is attributable to Advertiser or Advertiser employees, contractors, agents or representatives and/or (e) any Advertiser products or services, including, without limitation, any such Advertiser products or services sold or otherwise distributed by GoPuff.
Notwithstanding anything to the contrary in this Agreement, an indemnifying party is not obligated to indemnify any indemnified party to the extent that any Losses arise from an indemnified party’s breach of any term or condition of this Agreement.
LIMITATION OF LIABILITY; DISCLAIMER.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR LOSSES ATTRIBUTABLE TO GROSS NEGLIGENCE, WILLFUL MISCONDUCT, (A) IN NO EVENT SHALL GOPUFF BE LIABLE HEREUNDER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, INCLUDING LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER GOPUFF WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR WHETHER THE CLAIM WAS BASED IN CONTRACT, TORT OR OTHER LEGAL OR EQUITABLE THEORY AND (B) THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF GOPUFF UNDER THIS AGREEMENT, WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID IN THE PRECEDING TWELVE (12) MONTHS. ADVERTISER AGREES THAT THIS LIMITATION OF LIABILITY IS AN AGREED ALLOCATION OF RISK CONSTITUTING PART OF THE CONSIDERATION FOR GOPUFF PROVIDING THE AD DELIVERY UNDER THIS AGREEMENT.
DISCLAIMER. ANY WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE ONLY WARRANTIES PROVIDED BY EITHER PARTY HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE.
Intellectual Property. Each of the parties acknowledges and agrees that:
Each party retains exclusive ownership of its Intellectual Property Rights.
Subject to the terms and conditions of this Agreement, Advertiser grants Gopuff a limited, royalty-free, non-exclusive, non-transferable license to reproduce, publish, and distribute each Ad, including all of Advertiser’s intellectual property contained therein, on the Gopuff App in accordance with the terms of this Agreement. Other than this express license, Advertiser grants no right or license to Gopuff by implication, estoppel, or otherwise to any Advertisement or Advertiser’s intellectual property.
Gopuff does not transfer to Advertiser any right, title or interest, including any Intellectual Property Rights, in or to any Gopuff intellectual property (including, without limitation, any intellectual property developed by or on behalf of Gopuff in connection with the services hereunder, which, for the avoidance of doubt, shall remain the sole and exclusive property of Gopuff or the license holder).
From time to time during the Term, either party (“Disclosing Party”) may disclose or make available to the other party (“Receiving Party”) information about its business affairs, or goods, confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, customer, and other third-party confidential information and other sensitive or proprietary information. Such information, as well as the terms of this Agreement, whether oral or in written, electronic, or other form or media, and whether marked, designated or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Without limiting the foregoing and for the avoidance of doubt, Advertiser acknowledges and agrees that if and to the extent that Advertiser accesses any data or information hosted, processed, or collected by or on behalf of Gopuff, such data or information shall constitute Gopuff’s Confidential Information. Confidential Information does not include information that: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this section by the Receiving Party or any of its representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable law.
The Receiving Party shall, at all times after receipt of such Confidential Information: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; (c) not disclose any such Confidential Information to any third party, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement; and (d) immediately, upon discovery, notify the Disclosing Party of any unauthorized access to the Disclosing Party’s Confidential Information and promptly (at the Receiving Party’s expense) take actions, including those reasonably requested by the Disclosing Party, to comply with applicable laws governing data breaches and related matters.
The Receiving Party shall be responsible for any breach of this section caused by any of its representatives. On the expiration or any termination of this Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.
Further Assurances. Upon a party’s reasonable request, the other party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
Relationship of the Parties. The relationship between Gopuff and Advertiser is solely that of independent contracting parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment, or fiduciary relationship between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.
Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
Survival. The following provisions will survive the expiration or any termination of this Agreement: 7(d), 9, 10, 11, 12.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be sent to Gopuff, ATTN Associate General Counsel, in writing, at its headquarters (537 N. 3rd St. Philadelphia, PA 19123) via nationally recognized overnight courier.
Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Amendment and Modification. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.
Waiver. (a) No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of the party waiving its right; (b) any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion and (c) none of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement: (i) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or (ii) any act, omission or course of dealing between the parties.
Cumulative Remedies. Except as expressly provided to the contrary herein, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party of any of its obligations under Section 12 would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such party of any such obligations, the other party shall, in addition to any and all other rights and remedies that may be available to such party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.
Assignment; Successors; No Beneficiaries. Advertiser may not assign this Agreement, in whole or in part, by operation of law or otherwise, or any of its rights or obligations hereunder, without the prior written consent of Gopuff. Any purported assignment or delegation in violation of this Section is null and void. Subject to the foregoing, this Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns. This Agreement benefits solely the parties to this Agreement, their respective successors and permitted assigns, and the indemnified parties, and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Force Majeure. A party shall not be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is attributable to a force majeure event, including without limitation: (i) weather, fire, storms, elements of nature, flood, earthquakes and other natural disasters or acts of God; (ii) wars (declared and undeclared), acts of terrorism, sabotage, riots, civil disorders, blockades, embargoes, rebellions, revolutions, epidemics or quarantines; (iii) power or telecommunications failures or outages, hardware failures, software defects or malicious damage; (iv) industry-wide shortages of labor or materials, work stoppages, strikes or other similar events, labor disputes or accidents; (v) acts of any governmental authority with respect to any of the foregoing, prohibitions or restrictions or changes in applicable law or delays arising from compliance with any law or government regulation; or (vi) other similar causes beyond its control and without the fault or negligence of such party.
Governing Law. This Agreement appendices attached hereto, and all matters arising out of or relating to the foregoing, are governed by, and construed in accordance with, the laws of the State of New York, United States of America, without regard to the conflict of laws provisions thereof.
No Public Announcements or Trademark Use. Advertiser shall not: (a) make any statement (whether oral or in writing) in any press release, external advertising, marketing or promotional materials regarding the subject matter of this Agreement, Gopuff or its business unless (i) Advertiser has received the express written consent of Gopuff in each instance, or (ii) Advertiser is required to do so by law; (b) use any of Gopuff’s trademarks without the prior written consent of Gopuff.