I. Insertion Order and Inventory Availability
Acceptance: 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 Publisher, or (ii) the display of the first Ad impression by Publisher, 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 Publisher and Buyer
Revisions: Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing
II. Payment and Payment Liability
Measurement of IO Deliverables: Measurement of IO Deliverables will be done based on Buyer’s tracking systems. Such systems include, but are not limited to, Ad Servers used by the Buyer
Partial Delivery: In case the deliverable stated in this IO is not completed within the IO duration, Buyer will pay a pro-rated amount based on the actual deliverable measured unless a shortfall in deliverable causes a reduction of payment from Advertiser to Buyer. In the latter case, Buyer has the right to reduce payment corresponding to the reduction in payment from Advertiser
Termination Due to Non-Compliance: Buyer reserves the right to withhold part or all of the payment to the Publisher if the Publisher is found to have violated the terms of this agreement in any way
Invoices: Invoices are to be raised by the Publisher within 30 days of completion of the IO. In the case where IO duration is greater than 30 days and spans multiple Calendar months, the Publisher may raise invoices at the end of each Calendar month.
Payment Date: Buyer will make payment to Publisher after receipt of the Invoice based on the payment terms listed in the Insertion Order Details section of this document. Payment term will be counted after receipt of the Invoice. Publisher understands and agrees that Buyer is a mediation company, and acts solely as an agent for its Advertisers; whereas Buyer shall only be liable to Publisher for Publisher’s Revenue based on cleared payments from its Advertisers. Publisher shall not be entitled to, and Buyer shall not be obligated to pay Publisher, (a) in the event of a chargeback or withholding of revenue by its Advertisers for fraudulent or invalid traffic resulting from Publisher’s inventory. In any case of withholding, all non-disputed revenue will be payable in accordance with the terms of the agreement
III. Ad Placement, Positioning, and Delivery
Changes to Site: The publisher will provide notice of any changes to be made to the site that will impact Ad Placement at least 10 days prior to the change in writing. Buyer has the option of terminating or modifying the IO based on Buyer’s evaluation of the impact such changes to the site will have on the performance of inventory provided by Publisher
Technical Specifications: Publisher will undertake to provide technical specifications of Ads/ Ad Tags required to execute the IO within two days of acceptance of the IO. If the Buyer is unable to match the technical specifications listed, the IO can be canceled by either party with a notice of 24 hours. If technical specifications need to be changed midway through an IO duration, the Buyer can, at its sole discretion, cancel the IO and make a pro-rated payment for a percentage of the campaign delivered
Compliance with IO: Publisher will comply with the IO, including all Ad placement restrictions, and, will create a reasonably balanced delivery schedule unless the Insertion Order details explicitly specify otherwise. Publisher 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 have to be communicated to the Buyer and implemented only when approval is provided by Buyer in writing. Buyer reserves the right to supply through programmatic platforms inventory obtained from the Publisher under the context of this IO
Brand Safety Guidelines: Unless otherwise specified in writing, Ads may not be shown against content that falls under Brand Unsafe Categories. Buyer may change the definition of Brand Unsafe Categories from time to time. If such a change is made midway through the IO duration, Buyer may either terminate the IO or allow it to continue at the Buyer’s sole discretion. If the IO is terminated, Buyer will make a pro-rated payment for the percentage of IO delivered
Fraudulent Delivery: Publisher shall not engage in any form of fraudulent traffic including auto-refreshing pages, auto-spawning pages, overlapping Ads, click-bots, or any other form of fraudulent or artificial traffic
Incentivized Traffic: Publisher is strictly prohibited from delivering Ads in a manner that incentivizes users to click on Ads
Reselling: Buyer reserves the right to sell inventory obtained from the Publisher under the context of this IO through programmatic means
IV. Privacy, Data Usage, and Ownership
Privacy Policy: Publisher shall comply with all applicable privacy laws, rules and regulations. a. Publisher further agrees to post a Privacy Policy that discloses that
i. Third-party technology is used by the Buyer to serve ads on behalf of the Publisher
ii. Such technology could be used to collect data about the user for the purpose of serving them Ads
b. Such Privacy Policy should contain a conspicuous live hyperlink to one of the following links that provide the user the option to opt out of interest-based advertising: http://aboutads.info/choices, http://www.networkadvertising.org/managing/opt_out.asp
c. To the extent required by applicable law, rule, or regulation, a mechanism will be applied to obtain, with respect to the use of Third-party technology used by the Buyer, users’ prior and informed consent to the usage of third-party technology
At any given point in time, if the Publisher is unclear or unable to satisfy the terms of this section, Publisher is to inform the Buyer in writing. Buyer is not liable for any violation of Privacy laws, rules or regulations related to the failure of Publisher to provide appropriate Privacy information to their users
Ownership of Data: Buyer has the right to transmit, distribute, display and track cookie data gathered during the process of serving an Ad
Personally Identifiable Information: Publisher agrees not to provide any Personally Identifiable Information about any user who visits their website. Publisher further agrees that it will not use any information provided to Publisher by Buyer to violate any applicable law, regulation, Publisher’s own Privacy Policy or to restore or respawn cookies cleared or deleted by end-users
Sharing and Use of Data: Publisher shall have the right to use any performance data provided in Buyer’s reporting for any purpose related to Publisher’s business that complies with applicable laws, regulations, and Publisher’s own privacy policy. Buyer has the right to transmit, distribute and track cookie data gathered during the process of serving an Ad. Buyer and Buyer’s Customers shall have the right to use and disclose contextual and performance data derived from impressions on Publisher’s Websites for the following purposes: (i) in the aggregate for general reporting, such as the total number of websites on which Advertisements are placed, that may be provided to existing and potential customers, (ii) performance in connection with this Agreement, (iii) for campaign planning and targeting purposes, (iv) for analytical and marketing purposes, (v) for product development purposes, (v) if required by court order, law or governmental agency, and (vi) as otherwise permitted in Buyer’s privacy policy.
COPPA: Publisher represents and warrant that the Websites are not directed to children under the age of 13 and does not knowingly collect or maintain personal information from a child under the age of 13
Confidential Information: “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
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
Ownership of Ads: Ads provided to the Publisher by the Buyer either directly or indirectly are not the property of the Publisher. Consequently, the Publisher has to deliver the Ads as is, and may not copy, modify, take, sell, reuse, transfer or divulge any ad code without Buyer’s prior written consent
Property Rights and Ownership: Publisher represents, warrants to, and covenants with the Buyer that it has the right to enter into a contract with the Buyer for the display of Ads on the websites listed in this IO. If Publisher is a Network or Trading Desk, Publisher undertakes that it has the right to enter into a contract with the Buyer for all inventory that is supplied to the inventory for the purpose of showing Ads.
V. Miscellaneous
Representations and Warranties: Publisher warrants and represents at all times that Publisher has all necessary rights and authority (i) to enter into this Agreement, (ii) to place the tags provided by Buyer, (iii) to permit the placement of Advertisements served by Buyer or Programmatic Buyers
Except as expressly set forth in this Agreement, neither party makes, and each party expressly disclaims, all warranties, express or implied as to the subject matter of this Agreement, including without limitation, implied warranties of merchantability, fitness for a particular purpose and non-infringement. Without limiting the generality of the foregoing, Buyer shall not be liable for any unavailability or inoperability of the Internet, any technical malfunction, computer error, corruption or loss of information, or the content of any Advertisement. Except with respect to fraudulent activity, in no event shall either party be liable to the other for any lost profits, lost revenues, or for any indirect, special, incidental, consequential or exemplary damages in connection with this agreement, even if such party is informed of or otherwise aware of the possibility of such damages. In no event will Buyer’s liability exceed the payments made by Buyer to Publisher for the period of the IO covering the event giving rise to the claim
Indemnification: Publisher shall indemnify, defend and hold harmless Buyer, its affiliates advertisers, and the respective partners, agents, officers, directors, and employees of each of the foregoing, from and against any loss, cost, expense, claim, injury, or damage (including, without limitation, reasonable attorneys’ fees and expenses) (collectively, “Losses”), whether incurred due to third party claims or otherwise, arising or resulting from or caused by any breach by Publisher of any representation, warranty, or provision contained in this Agreement
Arbitration: Publisher agrees that any dispute or controversy arising out of or relating to any interpretation, construction, performance, or breach of this Agreement, shall be settled by arbitration to be held in Dallas, Texas, in accordance with the then-current JAMS rules. The parties may agree on a retired judge from the JAMS panel. If they are unable to agree, JAMS will provide a list of three available judges and each party shall strike one. The remaining judge shall serve as the arbitrator for purposes of resolving such dispute. The parties agree that arbitration must be initiated within 60 days after a party delivers a notice of intention to arbitrate. The arbitrator may grant relief in the nature of injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive, and binding on the parties. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. Datawrkz and Publisher shall each pay one-half of the costs and expenses of such arbitration, and each of them shall separately pay their own counsel fees and expenses and other costs of the arbitration.
Jurisdiction: The parties hereto irrevocably and unconditionally agree that this IO shall be governed and construed in accordance with the laws of the State of Texas without reference to its conflict of laws provisions, and will be subject to the sole jurisdiction of the appropriate courts situated at Austin, Texas.
Definitions
Publisher: Company that is providing inventory to Buyer
Buyer: Mediawrkz Inc.
Brand Unsafe Categories: These categories of content are considered undesirable by advertisers and include the following
Adult Content
-
Facilitation of Illegal Activities
-
Controversial Subjects (Occult, Taboos, Unusual Lifestyles, etc.)
-
Copyright Infringement
-
Drugs/Alcohol/Controlled Substances
-
Extreme Graphic/Explicit Violence
-
Incentivized Manipulation of Measurements
-
Hate/Profanity
-
Nuisance/Spyware/Malware/Warez
-
Political/Religion
-
Unmoderated User-Generated Content
Personally Identifiable Information: Information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context.
