“Ad” means any advertisement provided by Advertiser or Agency on behalf of an Advertiser.
“Advertisement” means specifically combined and used Advertising Materials.
“Advertiser” means the company, which is pointed as the Advertiser in the applicable IO or Agency acting on behalf of such company (when the Advertiser is not pointed directly by the Agency, so we consider Agency as the Advertiser himself), or any other entity which provides Advertising Materials and is recognised by company as Advertiser due to the fulfilment of the applicable IO.
“Advertising Materials” means artwork, copy, active URLs for Ads, any other type of ads, tags, texts or visual materials, which should and can be used in the Campaign and which the Advertiser/Agency has rights for.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Agency” means the advertising agency listed on the applicable IO or, in cases when we have direct IO with the Advertiser and the relevant article of these Terms does not divide rights and obligations of Advertiser and Agent, the term may mean Advertiser himself.
“Campaign” means the set of Advertising Materials provided by Advertiser and promoted by Media Company which results in a certain amount of Deliverables.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
“CPI Deliverables” means Deliverables sold on a cost per install basis.
“CPL Deliverables” means Deliverables sold on a cost per lead basis.
“Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).
“IO” means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency or Advertiser.
“Media Company” means the publisher listed on the applicable IO.
“Media Company Properties” are websites or other means, platforms etc., which are used to fulfill the applicable IO and are owned, operated, or controlled by Media Company.
“Network Properties” means websites or other means, platforms etc. which are used to fulfill the applicable IO and are not owned, operated, or controlled by Media Company, but on which Media Company has direct or indirect (through intermediaries, other publishers, media companies and contracts of such companies with any third parties) contractual right to serve Ads.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Platform” means a software solution owned by Media Company used for managing and serving campaigns, tracking, aggregating statistics, and interacting with clients and affiliates.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means Media Company Properties, Platform and Network Properties.
“Terms” means these Terms and Conditions.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
I. INSERTION ORDERS AND INVENTORY AVAILABILITY
a. . Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify information that the parties will consider necessary for execution of such IO.
b. . Media Company will make commercially reasonable efforts to notify Agency within seven (7) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
c. . Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
II. AD PLACEMENT AND POSITIONING
a. . Media Company will comply with the IO. About any exceptions the Agency will be informed in writing.
III. PAYMENT AND PAYMENT LIABILITY
a. . The payment is made in accordance with the invoices of the Media Company. Specific terms of payment should be agreed by the parties in IO.
b. . Agency will make payment within the term specified in IO.
c. . Unless otherwise set forth by Agency on the IO, Agency is liable for payments for Ads placed in accordance with the IO. Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms.
a. . Media Company will, within seven (7) business days of the start date on the IO, provide confirmation to Agency, either electronically or in writing, stating whether the components of the IO have begun delivery.
b. . Terms of reporting are specified in the applicable IO.
V. CANCELLATION AND TERMINATION
a. . Unless designated on the IO as non-cancelable, Advertiser and/ or Media Company may cancel the entire IO, or any portion thereof not later than 30 days prior to the termination date. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) and Deliverables provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
b. . Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
VI. FORCE MAJEURE
a. . Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”).
VII. AD MATERIALS
a. . Agency will submit Advertising Materials pursuant to IO in accordance with Media Company’s then-existing Policies. Media Company’s remedies for a breach of this provision will be determined by Media Company.
b. . Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, scripts etc.), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order.
c. . If Advertising Materials provided by Agency are damaged, not comply to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within seven (7) business days of its receipt of such Advertising Materials.
d. . Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
e. . When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.
f. . Limited License & Intellectual Property. Media Company, on the one hand, and Agency and Advertiser, on the other, may use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding such cooperation.
As well Advertiser grants Media Company and its partners, affiliates, third-party publishers and media companies a nonexclusive, limited, worldwide, royalty-free, revocable license to market, display, perform, copy, transmit, distribute, and promote the Ads in connection with its obligations hereunder.
Media Company and its partners, affiliates, third-party publishers and media companies may alter, modify, manipulate or create derivative works of the Ads or any Advertiser’s graphics, creative, copy or other materials owned by, or licensed to, Advertiser in any way. Media Company and its partners, affiliates, third-party publishers and media companies is entitled to use the Ads to the extent that pointed in the IO.
a. . Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and reasonable expenses (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from Media Company’s alleged breach of Section X, (ii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene. Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
b. . Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section X or of Advertiser’s representations and warranties in Section XII, (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 7 days prior to the violation giving rise to the Claim), or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Media Company in accordance with these Terms or an IO.
c. . Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency-specific obligations under Section X.
d. . The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
IX. LIMITATION OF LIABILITY
Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section VIII, damages that result from a breach of Section X, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
X: NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
a. . “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
b. . Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
c. . As used herein the following terms shall have the following definitions:
i. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO.
ii. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser.
iii. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, clicks, actions, conversions), but excluding Site Data or IO Details.
iv. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, Platform, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data. v. “Collected Data” consists of IO Details, Performance Data, and Site Data.
vi. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
vii. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
i. Unless otherwise authorized by Media Company, Advertiser will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (B) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party except as set forth in Section X(d)(iii).
ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view, click or other action related to an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis.
iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
g. . Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
h. . Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients.
XI. THIRD PARTY AD SERVING AND TRACKING (Applicable if Third Party Ad Server is used)
a. . Media Company will track delivery through its Platform and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company’s prior written consent.
b. Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be based on Advertiser’s ad server, unless otherwise agreed by Agency and Media Company in writing.
c. Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties.
d. Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency shall pay invoice based on Controlling Measurement of Advertiser’s ad server.
e. Measurement Methodology. Advertiser will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure regarding their respective ad delivery measurement methodologies.
f. Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 24 hours. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 24-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 24-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, Advertiser will pay for the Ads that would have run, or are run, after the 24-hour period but for the suspension, and can elect Media Company to serve Ads until the Third Party Ad Server is able to serve Ads.
g. Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 24 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Agency.
XII. REPRESENTATION AND WARRANTIES
a. Advertisers/Agency represents and warrants that ads are in compliant with all applicable laws and does not contain or promote, nor links to another website that contains libelous, defamatory, abusive, violent, prejudicial, obscene, sexually explicit or illegal content.
b. Advertiser/Agency represents and warrants not to promote within the IO, with the use of Sites and Platform any Ads of illegal substances or activities, pornographic, racial, ethnic, political, software pirating (e.g. Warez) or hacking, hate-mongering, or otherwise objectionable content.
c. Advertiser/Agency represents and warrants not to engage in any illegal activity, in accordance with state and federal law, whatsoever, is not allowed and owns the legal right to use and distribute all content, copyrighted material, products, and services displayed on ads.
d. Advertiser/Agency acknowledges that Media Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Campaigns.
e. Each party will make every effort to uphold the highest ethical and commercial standards. Each party shall not engage in any Fraudulent Activity. Fraudulent Activity means any of the following: impressions stacking, pixel stuffing, domain spoofing, ad injection, generating click farms, auto-subscription, ad stuffing, click stacking, credit card fraud etc.
f. If any errors or undesirable results occur due to no fault of Media Company, Media Company shall not be responsible for losses and Advertiser/Agency may not be compensated.
g. Advertiser/Agency represents and warrants that he is the owner of or is licensed to use the content and subject matter contained in its advertising and collateral information, including, without limitation, (a) the names and/or pictures of persons; (b) any copyrighted material, trademarks, service marks, logos, and/or depictions thereof; and (c) any testimonials or endorsements contained in any advertisement submitted to Media Company. Furthermore, Advertiser represents and warrants that (i) it is compliant with all laws applicable to the conduct of its business including laws applicable to the advertising and offering of the goods and services which are the subject of the advertisements hereunder; and (ii) the use, reproduction and display of the advertisements and content will not violate or infringe or dilute in any manner any copyright, trademark, trade secret, patent or other intellectual property or other third-party right.
XIII. COMPLIANCE WITH LAW
a. Advertiser/Agent represents and warrants that Advertiser/Agent will not violate any applicable foreign or domestic, federal, state, or local statutes, laws, ordinances, rules and regulations, or industry standards, including without limitation, the CAN-SPAM Act of 2003 (“CAN-SPAM”), California’s Anti-Spam Act, Cal. Bus. & Prof. Code §§ 17529 et seq. (“California’s Anti-Spam Act”), the Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq. (“TCPA”), the Federal Trade Commission Act (“FTC Act”), all FTC rules, regulations, and guidelines, applicable credit card merchant guidelines, the Utah and Michigan “Child Protection Registry” laws, the Child Protection and Obscenity Enforcement Act, 18 U.S.C. § 2257 (“Section 2257”), and the United Kingdom Data Protection Act of 1998 (as amended) (“UK Data Protection Act”).
b. Advertiser/Agent will make all necessary efforts to secure User Volunteered Data, Site Data and any personal data received during (or as a result of) the fulfillment of IO from Media company and will store and process such information in accordance with the legislation on the protection of personal data (including the legislation of the countries of origin of such personal data).
XIV. DISPUTE RESOLUTION. APPLICABLE LAW
a. A party who intends to seek dispute resolution must first send to the other a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute and setting forth the specific relief sought. All Notices to Media Company shall be sent to the address (including email) specified in IO. Upon receipt of a Notice, the other party shall have a thirty-day (30) period in which it may satisfy the claim against it by fully curing the dispute and/or providing all the relief requested in the Notice. After the expiration of such thirty-day (30) cure period, you or Company may commence suit.
b. Relations between parties and all IOs will be governed by the laws of the State of California, USA.
c. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in California, and the parties consent to the jurisdiction of such courts.
a. Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser/Agency represents and warrants that Advertiser/Agency has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
b. Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
c. Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
d. Conflicts; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. Modification of these Terms by the Media Company will be binding. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
e. Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO. All notices to Advertiser will be sent to the address specified on the IO.
f. Survival. Sections III, V, VIII, IX, X, XII, XIII, XIV and XV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
g. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.