Surfside IAB Addendum

ADDENDUM TO AAAA/IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS (VERSION 3.0), DATED APRIL 26, 2023

This is an Addendum (the “Addendum”) to the AAAA/IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS, Version 3.0 (the “IAB Terms”). Media Company and Advertiser (or Agency, as agent for Advertiser) agree that the IAB Terms, as modified by this Addendum, shall govern the placement of advertising on any media property sold by Media Company to Advertiser pursuant to an insertion order, order, or other agreement incorporated by reference (“IO”) between Media Company and Advertiser (or its Agency). Media Company and Advertiser (or its Agency) agree to be bound by the IAB Terms as modified by this Addendum. The terms of the IO, along with the IAB Terms and this Addendum (collectively, the “Agreement”) supersede all terms and conditions previously agreed upon. To the extent anything in this Addendum conflicts with the IAB Terms and/or any other terms included or referenced in the applicable IO, this Addendum shall control unless it is expressly noted in the IO that such terms supersede any conflicting terms in this Addendum. If Advertiser is entering into an IO directly (i.e., without an Agency), then the parties agree that the Amended IAB Terms applicable to that IO shall be amended so that all references to “Agency” shall be to “Advertiser,” as applicable. To the extent an Advertiser executes any IOs through its Agency, it is understood that, unless otherwise explicitly agreed in such IO between Media Company and Agency that those Agency terms override these Amended IAB Terms, these Amended IAB Terms shall apply. Capitalized terms used and defined in the IAB Terms shall have the same meaning when used in this Addendum unless otherwise stated herein.

Advertiser acknowledges and agrees that the purchase of media via any self-serve platforms shall be governed by separate terms accepted by Advertiser or its Agency as made available through such platform.

DEFINITIONS

Media Company: “Media Company” means Surfside Solutions Inc., a Delaware corporation.
Network Properties: The definition of “Network Properties” is deleted in full and replaced with the following: “Network Properties” are websites, mobile applications, devices, screens (including in-store checkout display screens and/or TV walls), or any other digital platforms, communications and/or online or offline point of presence specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads.

SECTION II: AD PLACEMENT AND POSITIONING

Delivery Schedule: In connection with Section II(a) of the IAB Terms, Media Company will use commercially reasonable efforts to create a reasonably balanced delivery schedule; provided that Advertiser and Agency acknowledge that, given the nature of Network Properties’ businesses, impressions on Sites may substantially fluctuate at times based on consumer demand. Media Company’s obligation to create a reasonably balanced delivery schedule shall not apply with respect to unguaranteed Deliverables, including sponsorships (e.g., site specials, homepage lockouts, etc.) and sponsored product ads. Impression distribution and delivery may be more than a +/- 10% margin for every 2 weeks of a given campaign. If impression or click guarantees (as set forth in an IO) are not achieved, the advertising campaign will continue to run until such metrics have been achieved. When delivering ads, Media Company does not guarantee in each instance that an Ad will reach its intended target or achieve any particular outcomes. Unless set forth explicitly on an IO, Media Company does not guarantee the reach or performance Ads receive, such as the number of people who will view your Ads or the number of clicks your Ads will get. Media Company does not control how clicks are generated from Ads. Media Company has systems in place to attempt to detect and filter certain click activity, but Media Company is not responsible for click fraud, technology issues, or other potentially invalid click activity that may impact Advertiser and Agency’s cost of running Ads.
Editorial Adjacency Guidelines: For Ads delivered on Network Properties, Media Company and Advertiser agree that Media Company shall have no responsibility to comply with any Editorial Adjacency Guidelines, and compliance with Editorial Adjacency Guidelines shall be subject to the terms of the applicable Network Property and/or end publisher.

SECTION III. PAYMENT AND PAYMENT LIABILITY

Invoices & Payment Date: Unless otherwise set forth in the IO or otherwise agreed upon by the parties in writing, Advertiser must make all payments in United States Dollars at the time of purchase itself for all campaigns ending within 60 days of the contracted start date as detailed in the IO. For campaigns that are scheduled to run more than 60 days from the contracted start date of the IO, Media Company will collect the payment, on a monthly basis, using your stored payment credentials no more than five (5) days prior to the start of each calendar month during the campaign. If Advertiser has failed to make payment within such time, Media Company may cancel or suspend the IO. If Agency or Advertiser does not make payments when due, Media Company shall have the option to charge Agency or Advertiser interest on the overdue amounts at a rate equal to the lower of: (i) 12% per year, or (ii) the highest rate permitted under applicable law.
Payments: For Advertiser’s convenience, Media Company allows Advertiser to make payments using a number of different sources, like credit cards and debit cards, ACH, Wire, and other mutually agreed to payment methods set forth in the IO. Advertiser can store payment credential, and can add, update or remove payment credentials to or from Advertiser’s account through a link on Media Company’s platform or by contacting Advertiser’s internal customer success manager at Media Company. Advertiser agrees to keep stored payment credential(s) up to date. If Media Company participates in a card account updater service, Advertiser authorizes us to contact Advertiser’s card issuer or card network to obtain up-to-date information about payment credentials, and to automatically update Advertiser’s payment credential, including account number or expiration date, if such information is available. When Advertiser provides a payment credential, Advertiser confirms that it is permitted to use that payment credential. When Advertiser submits an IO, Advertiser authorizes Media Company (and our designated payment processor) to charge the full amount to the payment credential Advertiser designates for the transaction. Advertiser also authorizes Media Company to collect and store that payment credential, along with other related transaction information. Upon execution of an IO, Advertiser and/or Agency authorizes Media to initiate debit and/or credit entries to your Checking/Savings account at the bank named in the subsequent IO for services provided and/or to auto charge your credit card for contracted payments. This authorization will remain in effect until cancelled in writing. If the transaction results in an overdraft or other fee from the card issuer due to going over the credit limit or having insufficient funds in the account, the card issuer may charge a fee, and Advertiser alone is responsible for that fee.
Payment Liability: Where an Agency is making payment on an Advertiser’s behalf, Agency shall collect and clears payment from Advertiser on a timely basis to allow Agency to meet the payment deadlines specified herein.

SECTION IV. REPORTING

Media Company Reporting: Media Company will make reporting available via the Surfside dashboard, unless otherwise specified on the IO. Reports will be broken out by day and summarized by strategy, impressions, clicks, spend, and other variables as may be defined on the IO.
Makegoods for Reporting Failure: If Agency informs Media Company that Media Company has delivered a materially incomplete or materially inaccurate report, or no report at all, Media Company will cure such failure within five (5) business days of receipt of such notice.

SECTION V. CANCELLATION AND TERMINATION

Sections V(A) shall be deleted in its entirety and replaced with the following: “Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the un-delivered portion of an IO, or any undelivered portion thereof, as follows:
1. Without penalty, if written notice to cancel is received by Media Company at least seven (7) days prior to the start of the next calendar month of a campaign. Such cancelation shall be effective as of the start of such calendar month.
2. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) 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.”
Media Company shall have the right to cancel without cause at any time, or to immediately reject or remove any portion of an Ad, or Advertising Materials, any content of any campaign under an IO from any Site, or any targeting options made available by Media Company. If there is cancellation or rejection or removal of any portion of an Ad, Advertising Materials or campaign content, or a removal of any targeting option without cause by Media Company, Advertiser’s sole remedy will be on-site makegoods, or if no makegoods can be agreed upon, Advertiser will either receive a credit for Ads not delivered, or Media Company will not bill Advertiser for any Ads not delivered, as determined in Media Company’s sole discretion (the “Makegood Procedure”).

SECTION VI. MAKEGOODS

Under-delivery: Media Company will use commercially reasonable efforts to communicate, either electronically or in writing, if Media Company believes that an under-delivery of Ads is likely. Unless otherwise set forth herein or otherwise agreed pursuant to an IO, in the case of an actual under-delivery, Advertiser’s sole remedy is the Makegood Procedure set forth above. Section VI(b), Makegood Procedure, is deleted.
Unguaranteed Deliverables: If an IO contains fixed fee deliverables (e.g., homepage lockouts, sponsorships), CPA Deliverables, CPL Deliverables, CPC Deliverables (e.g., Sponsored Product ads), or unguaranteed CPM Deliverables, guaranteed delivery, even delivery, and makegoods are not available.

SECTION VII. BONUS IMPRESSIONS

Section VII shall be deleted in its entirety and replaced with the following: “Media Company may deliver bonus impressions (including to meet agreed-upon performance metrics or offer additional media opportunities) in connection with any media campaign without the need to obtain Advertiser’s prior written approval or issue a new IO. For the avoidance of doubt, Media Company shall not be responsible for any Advertiser third party costs (if any) in connection with such bonus impressions, and Advertiser will not be charged by Media Company for such additional bonus impressions.”

SECTION IX. AD MATERIALS/SITE STANDARDS

Notwithstanding anything to the contrary in the IAB Terms, Media Company may (but shall be under no obligation to) modify Ads as necessary to ensure compliance with any Policies or to otherwise ensure the Ads comply with applicable technical specifications and requirements.
Advertiser will not provide Ads containing malware, spyware or any other malicious code or other software designed to covertly gather user information or behavior or which collects or uses data, content or information from Media Company’s systems without authorization, or knowingly breach or circumvent any program security measure. Advertiser will not, and will not authorize any third party to, (1) generate automated, fraudulent or otherwise invalid impressions, inquiries, clicks or conversions or (2) conceal conversions.

SECTION X. INDEMNIFICATION

Section X(b) of the IAB Terms is amended to (a) add “and the owners, operators or controllers of Network Properties (“Network Property Owners”)” after “Representatives”. In addition to the indemnification provision in Section X of the IAB Terms, Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives, and the Network Property Owners from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged or actual breach of any representations, warranties and obligations in the Agreement, (ii) the pages and sites to which any Ads or Advertising Materials link; (iii) the use of any products or services sold through an Ad or Advertising Materials or through the pages or sites to which they link; or (iv) the use of any content, data, vendors, or technology provided by Advertiser, Agency or anyone acting on their behalf, in the performance of the IO (including any failure to pay any fees for rights). Advertiser shall be responsible for compliance of the terms of this Agreement by its Agency and Advertiser Vendors, and Advertiser’s indemnification obligation above shall extend to any acts, omissions, services and deliverables of its Agency and Advertiser Vendors.
For the avoidance of doubt, contribution to, creation or approval of Ads or any Advertising Materials by Media Company shall not limit Advertiser’s indemnification obligations.

SECTION XI. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE IAB TERMS, EXCLUDING CLAIMS OR LIABILITIES ARISING FROM OR IN CONNECTION WITH EACH PARTY’S OBLIGATIONS UNDER SECTION X OF THESE AMENDED IAB TERMS, A PARTY’S BREACH OF SECTION XII OF THESE AMENDED IAB TERMS, OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY SUCH PARTY, IN NO EVENT WILL ANY PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR EXEMPLARY 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.
IN NO EVENT SHALL MEDIA COMPANY AND/OR ITS AFFILIATES’ AGGREGATE LIABILITY FOR ANY CLAIMS OR LIABILITIES ARISING OUT OF OR RELATED TO ANY IO EXCEED THE AMOUNT PAID OR PAYABLE BY ADVERTISER OR AGENCY TO MEDIA COMPANY UNDER THE APPLICABLE IO.
No conditions, warranties or other terms apply to this Agreement or to any goods or services supplied by Media Company under this Agreement unless expressly set out in this Agreement. To the fullest extent permitted by law, Media Company hereby disclaims any and all implied conditions or warranties, including, without limitation, any warranties of merchantability, fitness for a particular purpose, or other warranties arising by usage of trade, course of dealings, or course of performance. Without limiting the foregoing, to the fullest extent permitted by law and except as specifically set forth herein, Media Company specifically disclaims any conditions or warranties relating to the effectiveness of the Sites or Ads distributed pursuant to this Agreement. In addition, Media Company specifically disclaims any and all liability for, and any terms, conditions or warranties relating to, the delivery of Ads on Network Properties, as Network Properties are not subject to Media Company’s ownership or control, and have not agreed to be contractually bound to the terms herein.

SECTION XII. NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS

For purposes of this Section XII of these Amended IAB Terms, the following revised definitions shall apply:
1. “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, Media Company, Network Properties or any User.
2. “Confidential Information” will include (A) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); (B) information shared, either written or oral, in connection with the evaluation of business opportunities between the parties, including, without limitation, information relating to pricing, product roadmaps, creative concepts, and Media Company product and service offerings; (C) any information provided to Advertiser or Agency through its Media Company’s advertising offerings or account(s), and/or collected through Tags placed pursuant to an IO; and (D) 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 and the following shall be considered Media Company’s Confidential Information: Site Data; Performance Data, any audience segment information or related data provided by Media Company; any reports provided by Media Company, including for the AXT Program. 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.
3. “Repurposing” means retargeting a User or appending data to a non-public profile regarding a User for purposes other than performance of the IO, including any other targeted advertising purpose, including on Advertiser’s own behalf.
4. “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, brand, content, context, or a User (e.g. any unique identifier that may identify the foregoing, including, without limitation, IP address, device identifiers and any other personal information); (C) provided or made available by Media Company to Advertiser and/or Agency in connection with the IO (excluding Performance Data); or (D) entered by users on any Media Company Site other than User Volunteered Data.
5. “Tags” means any tag, pixel, cookie, algorithm, insight engine, Adobe Flash local shared object, HTML5 local storage, beacon, computer code, or other technology capable of collecting, inferring, or storing information about users.
6. “User” is an individual person, household or device. In this Section XII, this definition applies uses of both “User” and “user”.
Privacy Policies: Agency, Advertiser, and Media Company will post on their respective websites their privacy policies and adhere to their privacy policies, which will abide by Applicable Laws (as defined herein) and the following standards for notice and choice to users: (i) a statement that data may be collected or used for interest based advertising; (ii) a description of the types of data that are collected for interest based advertising; (iii) an explanation of the advertising purposes for which data is collected by or will be transferred to third parties; and (iv) a conspicuous link to an opt out mechanism for interest based advertising; failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
Compliance with Law: Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, codes, judicial or administrative actions, platform policies, guidelines, and principles (“Applicable Laws”) which are applicable to the performance of its respective obligations under the IO.
Advertiser Data Use and Collection:
1. Unless otherwise authorized by Media Company, Advertiser will not: (A) use Collected Data for Repurposing; (B) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party; or (C) use IO Details of Media Company or Site Data in any manner other than in performing under the IO and for authorized campaign reporting and measurement. For the avoidance of doubt, no personal information (as that term is defined in the California Consumer Privacy Act or other applicable privacy laws) (hereinafter “Personal Information”) may be collected or used by Advertiser or Agency pursuant to any IO, and Media Company will not provide Personal Information to Advertiser or Agency in any campaign reporting nor authorize any third party tagging vendors to provide such Personal Information to Advertiser or Agency. Advertiser/Agency’s approved tagging vendors may only access Personal Information in connection with an IO as set forth herein.
2. All Tags used by Advertiser or its Agency, and/or any third party vendors acting on their behalf in connection with any IO, must be disclosed and expressly pre-approved by Media Company in writing prior to running, and must adhere to Applicable Laws, all applicable Policies, and any other requirements that may be supplied by Media Company to Advertiser (or Agency, on its behalf). In addition, the provider of such Tags must be an approved Media Company tagging vendor (which may include entering into a direct agreement with Media Company in a form to be provided by Media Company, and completing other due diligence related assessments). Agency or Advertiser, as applicable, shall notify Media Company of any such Tag vendor(s) they request Media Company engage in connection with the services under this Agreement.
3. Advertiser may use Media Company-approved Tags solely for the purpose of tracking impressions, conversion, fraud screening, viewability, invalid traffic, brand safety and view-time data for Ads delivered hereunder and only on Site locations approved by Media Company. Advertiser, and anyone acting on Advertiser’s behalf, is not permitted to collect data for any other purpose without Media Company’s prior written approval of (A) the type of data or information to be collected and (B) the Tags and any changes thereto. In no event may Advertiser or Agency use data collected or received pursuant to an IO for Repurposing, or for the creation, categorization or re-targeting of data segments, Users, or audiences. Under no circumstances are Advertiser or Agency permitted to re-identify any data that has been Aggregated or anonymized, including to directly identify any individual. In addition, Advertiser may not use any data collected in connection with this Agreement for any non-marketing purposes, or uses prohibited under Applicable Laws, including, without limitation decisions relating to eligibility for, or pricing of, employment, credit, health care, insurance, housing, or education.
4. In no event will Advertiser or Agency be permitted to use or knowingly engage others to use: (A) Locally Shared Objects/Flash Cookies (LSO/FSO) or Document Object Model (DOM) storage; (B) any JavaScript or similar technologies to ascertain the web browsing history of a user; (C) any Tags or other technologies that “respawn” a user’s cookies (including but not limited to HTML5 local storage, browser cache) after the user has deleted cookies using standard browser settings or which otherwise circumvent user-expressed privacy/data collection preferences; (D) Tags that enable any third or fourth party website access without written approval of Media Company; or (E) any Tags or other technologies that do not provide users with an opportunity to control the use of such technologies. Media Company may monitor the Advertiser’s use of all Tags to ensure that Advertiser complies with this Agreement.
5. To the extent Advertiser shares any data with Media Company for use in connection with the IO, Advertiser represents and warrants that it (A) has adequate permission to share such data and (B) such data was collected and shared in accordance with Applicable Laws, and Media Company’s use of such data in accordance with the terms of this Agreement, will not violate any Applicable Laws or third party rights.
Agency Use of Data: 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. Agency shall only use the Collected Data for the Advertiser named in the corresponding IO, and not for any other Agency client.

SECTION XIII. THIRD PARTY AD SERVING AND TRACKING

Third Party Ad Servers: Media Company will track delivery of Ads for any campaigns through its own ad server, and bill Advertiser based on measurements from its ad server, rather than a Third Party Ad Server. A Third Party Ad Server may not be used for tracking impressions or for billing purposes.

SECTION IX. AD MATERIALS

Ad Tags: The following replaces Section IX(f) of the IAB Terms: All use of Third Party Ad Server tags shall comply with Section XII.d.i and Media Company’s Policies including, without limitation, policies regarding use of tags, pixels, JavaScript, cookies and any other technology now known or hereafter developed that is designed to track users’ online behavior or activity. Media Company will make commercially reasonable efforts to support Third Party Ad Server tags on all platforms and devices. Implementation instructions should be included with the delivery of the tags if non-standard implementation is required. Notwithstanding the foregoing, Agency and Advertiser acknowledge that not all platforms and devices support all Third Party Ad Servers or tags and such platforms and devices may require Media Company’s ad server and tags to deliver the campaign.

SECTION XIV. MISCELLANEOUS

Necessary Rights: In addition to Advertiser’s representations and warranties set forth in Section XIV(a) of the IAB Terms, Advertiser further represents and warrants that (i) the content included in the Ads, Advertising Materials, any other materials provided to Media Company for use pursuant to an IO, and on the Advertiser’s brand site(s) to which any Ads or Advertising Materials direct Users, as well as the operation thereof, will not violate or infringe the copyright, trademark, trade name, patent, literary, intellectual, artistic or dramatic right, right of publicity or privacy or any other right of any entity or person or contain any material which is defamatory, libelous, slanderous, pornographic, or obscene; (ii) all Ads and Ad Materials and any claims contained therein, including without limitation, those about Advertiser, its products or services, or any of its competitors, are accurate, truthful and not false or misleading, and Advertiser has in its possession adequate and sufficient substantiation for all such claims as required by Applicable Laws, and the past usage of the same or similar claims has occurred without, to Advertiser’s knowledge, any objections by the Federal Trade Commission, U.S. Food and Drug Administration, or any other local, state or federal government agency; and (iii) any Advertiser brand site(s) to which Ads or Advertising Materials direct Users (including the services or products therein) shall not be operated in or encourage violation of any Applicable Laws.
Governing Law, Amendment: This Agreement and all IOs will be governed by the laws of the State of New York. Media Company, Advertiser and Agency, as applicable, agree that any claims, legal proceedings, or litigation arising in connection with this Agreement (including any IO) will be brought solely in New York, New York and the parties consent to the jurisdiction of such courts. 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. The Agreement constitutes the entire agreement and understanding between the parties concerning the subject matter of the Agreement and supersedes all prior agreements and understandings, whether written or oral.

STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS

These Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0, are intended to offer media companies and advertising agencies a standard for conducting business in a manner acceptable to both. This document, when incorporated into an insertion order, represents the parties’ common understanding for doing business. This document may not fully cover sponsorships and other arrangements involving content association or integration, and/or special production, but may be used as the basis for the media components of such contracts. This document is not meant to cover the relationship between a publisher and a network, or direct advertiser buys with publishers.

DEFINITIONS

“Ad” means any advertisement provided by Agency on behalf of an Advertiser. “Advertiser” means the advertiser for which Agency is the agent under an applicable IO. “Advertising Materials” means artwork, copy, or active URLs for Ads.

“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.

“CPA Deliverables” means Deliverables sold on a cost per acquisition basis. “CPC Deliverables” means Deliverables sold on a cost per click basis. “CPL Deliverables” means Deliverables sold on a cost per lead basis.

“CPA Deliverables” means Deliverables sold on a cost per thousand impression 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 specified on an IO that are owned, operated, or controlled by Media Company.

“Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a 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.

“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 and Network Properties.

“Terms” means these Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0.

“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.

INSERTION ORDERS AND INVENTORY AVAILABILITY
1. IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
2. Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) 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.
AD PLACEMENT AND POSITIONING
1. Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will create a reasonably balanced delivery schedule. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Agency in writing.
2. Changes to Site. Media Company will use commercially reasonable efforts to provide Agency at least 10 business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Agency’s and Advertiser’s sole remedy for such change, Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Agency may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
3. Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already-purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company’s cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
4. Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Media Company Properties, although Media Company will at all times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company and Agency agree that Media Company’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Agency with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Media Company 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 Agency for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Agency and Media Company will negotiate an alternate solution. After Agency notifies Media Company that specific Ads are in violation of the Editorial Adjacency Guidelines, Media Company will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Agency and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.
  For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Advertiser’s and Agency’s sole remedy for Media Company’s breach of such obligation will be to submit written complaints to Media Company, which will review such complaints and remove user-generated content that Media Company, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.
PAYMENT AND PAYMENT LIABILITY
1. Invoices. The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. If Media Company sends the invoice after the 90-day period and the Agency either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, Agency will use commercially reasonable efforts to assist Media Company in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds.
  Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided on a calendar-month basis with the net cost (i.e., the cost after subtracting Agency commission, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
2. Payment Date. Agency will make payment 30 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO. Media Company may notify Agency that it has not received payment in such 30-day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice.
3. Payment Liability. Unless otherwise set forth by Agency on the IO, Media Company agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Advertiser to Agency for Ads placed in accordance with the IO. For sums not cleared to Agency, Media Company agrees to hold Advertiser solely liable. Media Company understands that Advertiser is Agency’s disclosed principal and Agency, as agent, has no obligations relating to such payments, either joint or several, except as specifically set forth in this Section III(c) and Section X(c).
  Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.
  Agency’s credit is established on a client-by-client basis.
  If Advertiser proceeds have not cleared for the IO, other advertisers from Agency will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question.
  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. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.
  If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.
REPORTING
1. Confirmation of Campaign Initiation. Media Company will, within two (2) 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.
2. Media Company Reporting. If Media Company is serving the campaign, Media Company will make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).
  Once Media Company has provided the online or electronic report, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Media Company’s invoice for such period.
3. Makegoods for Reporting Failure. If Media Company fails to deliver an accurate and complete report by the time specified, Agency may initiate makegood discussions pursuant to Section VI, below.
  If Agency informs Media Company that Media Company has delivered an incomplete or inaccurate report, or no report at all, Media Company will cure such failure within five (5) business days of receipt of such notice. Failure to cure may result in nonpayment for all activity for which data is incomplete or missing until Media Company delivers reasonable evidence of performance; such report will be delivered within 30 days of Media Company’s knowledge of such failure or, absent such knowledge, within 180 days of delivery of all Deliverables.
CANCELLATION AND TERMINATION
1. Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
  1. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight (8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables.
  2. With seven (7) days’ prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
  3. With 30 days’ prior written notice to Media Company, without penalty, for any flat fee- based or fixed-placement Deliverable, including, but not limited to, roadblocks, time- based or share-of-voice buys, and some types of cancelable sponsorships.
  4. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) 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.
2. For Cause. 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 same 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.
3. Short Rates. Short rates will apply to canceled buys to the degree stated on the IO.
MAKEGOODS
1. Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon as possible (and no later than 14 days before the applicable IO end date unless the length of the campaign is less than 14 days) if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent with these Terms.
2. Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Agency or Advertiser has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Agency and/or Advertiser is reasonably current on all amounts owed to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
3. Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
BONUS IMPRESSIONS
1. No Third Party Ad Server. Where Agency does not use a Third Party Ad Server, Media Company may bonus as many ad units as Media Company chooses unless otherwise indicated on the IO. Agency will not be charged by Media Company for any additional Deliverables above any level guaranteed on the IO.
2. Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
FORCE MAJEURE
1. Generally. 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”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
2. Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
3. Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder of the IO without penalty.
AD MATERIALS
1. Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies. Media Company’s sole remedies for a breach of this provision are set forth in Section V(c), above, Sections IX (c) and (d), below, and Sections X (b) and (c), below.
2. Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.
3. Compliance. 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, JavaScript), 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. In addition, Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Media Company or any of its Affiliates (as defined below), provided that if Media Company has reviewed and approved such Ads prior to their use on the Site, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.
4. Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials.
5. No Modification. 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.
6. Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.
7. Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval
INDEMNIFICATION
1. By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Media Company’s alleged breach of Section XII or of Media Company’s representations and warranties in Section XIV(a), (ii) Media Company’s display or delivery of any Ad in breach of Section II(a) or Section IX(e), or (iii) 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.
2. By Advertiser. 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 XII or of Advertiser’s representations and warranties in Section XIV(a), (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 14 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.
3. By Agency. 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 XII.
4. Procedure. 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.
LIMITATION OF LIABILITY
Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary 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.
NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
1. Definitions and Obligations. “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.
2. Exceptions. 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.
3. Additional Definitions. As used herein the following terms shall have the following definitions:
  1. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
  2. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
  3. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
  4. “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, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
  5. “Collected Data” consists of IO Details, Performance Data, and Site Data.
  6. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
  7. “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.
4. Use of Collected Data
  1. 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 XII(d)(iii).
  2. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of 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; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO.
  3. 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.
5. User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the IO and signed by both parties.
6. Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
7. Compliance with Law. 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.
8. Agency Use of Data. 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, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
THIRD PARTY AD SERVING AND TRACKING (Applicable if Third Party Ad Server is used)
1. Ad Serving and Tracking. Media Company will track delivery through its ad server 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.
2. Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:
  1. Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).
  2. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non-proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XIII(c), below.
  3. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Media Company’s ad server, unless otherwise agreed by Agency and Media Company in writing.
3. 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 or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary.
4. Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, 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 reserves the right to either:
  1. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Agency and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
  2. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
5. Measurement Methodology. Media Company will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
6. 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 72 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 72-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 72-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 72-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. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company’s own advertisements or advertisements provided by a Third Party.
7. Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 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.
MISCELLANEOUS
1. 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 represents and warrants that Advertiser 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.
2. 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.
3. 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.
4. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of the State of New York. 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 New York, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. 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.
5. 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 with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
6. Survival. Sections III, VI, X, XI, XII, and XIV 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.
7. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.