Summit Horizon Solutions Standard Terms and Conditions:
Last updated: January 05, 2020
These Summit Horizon Solutions Standard Terms and Conditions (the “Terms”) are entered into on the Effective Date and are incorporated as part of the Agreement between Media Company and Client executing the IO. Media Company and Client are each a “Party and together are the “Parties”. All capitalized terms that are not otherwise defined herein shall have the meanings assigned to them in the IO. Media Company and Client agree as follows:
“Ad” means any CPM Deliverables, CPC Deliverables or Email Deliverables served by Media Company on behalf of Client.
“Ad Campaign” means any Ad campaign provided by Media Company on behalf of Client.
“Advertising Materials” means artwork, banners, images, copy, or active URLs or tags 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 employed by Agency Advertising Client to plan, design, place, supervise and/or contract their advertisements or Ad Campaigns.
“Agency Advertiser” means an entity that employs or contracts with an Agency to plan, design, place, supervise and/or contract their advertisements or Ad Campaigns.
“Client” or “Advertiser” means the Client of Media Company.
“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.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“Custom Content” or “Custom Content Deliverables” means any content created by Media Company and sold to Client and/or used in the delivery of any Lead Campaign or Ad Campaign.
“Deliverable” or “Deliverables” or “Delivery” means the inventory delivered by Media Company including the CPA Deliverables, CPC Deliverables, CPL Deliverables, CPM Deliverables, Custom Content Deliverables, Email Deliverable, Fixed Priced Deliverables, or other desired actions.
“Email Deliverables” means Deliverables sold on a cost per email campaign basis.
“Fixed Priced Deliverable” means any Deliverable not referenced herein that is sold on a fixed priced basis
“IO” or “Insertion Order” means a mutually agreed insertion order that incorporates these Terms and which outlines the Media Company Services.
“Internet” means that certain global network of computers commonly referred to as the Internet, including (without limitation) the World Wide Web.
“Leads” means CPL Deliverables that include an individual or organization further identified by contact information and in some cases, demographic, firmographic and/or technographic information.
“Lead Campaign” means the process by which Media Company obtains, processes, provisions and provides Client with Leads and CPL Deliverables.
“Lead Data” means all information including but not limited to data, profiles, statistics, insights, behavioral data, intent data, contact information, demographic data, firmographic data, technographic data, data relating to corporate entities generally, and Personal Data relating to Leads and Lead contact company.
“Media Company Properties” are websites specified on an IO that are owned, operated, or controlled by Media Company including, but not limited to, SummitHorizonSolutions.com.
“Media Company Services” or “Media Company Solutions” means any product, service or Deliverable provided to Client 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.
“Prohibited Code” means computer programs or tools that (a) alter a computer user’s browser or other settings or use an ActiveX control or similar device to download advertising supporting software without providing fair notice to and obtaining affirmative consent; (b) prevent a computer user’s reasonable efforts to block the installation of or disable or remove unwanted software; (c) remove or disable any security, anti-spyware or anti-virus technology on a user’s computer; (d) send email through a user’s computer without prior authorization; (e) open multiple, sequential, stand-alone advertisements in the consumer’s Internet browser which cannot be closed without closing the Internet browser or shutting down the computer or (f) other similar activities that are prohibited by applicable law or industry best practices.
“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.
“Third-Party” or “Third Parties” means an entity or person that is not (i) a party to an IO, (ii) an Advertiser designated in an IO, or (iii) an Affiliate or Representative of a party to an IO.
“Terms” means these Standard Terms and Conditions.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads exclusive of any Email Deliverables.
“You” and “Your” are defined within the Addendum A to these Terms
- INSERTION ORDERS AND INVENTORY AVAILABILITY
IO Details. From time to time, Media Company and Client may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s), amount(s) and specifications (including specific filters, segments etc.) 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 any Media Company Services, and (v) the identity of and contact information for Media Company, Client and any Third-Party Ad Server if applicable. Other items that may be included are, but are not limited to, reporting requirements, any special Delivery scheduling, and any other specific or special terms or specifications.
Acceptance. Acceptance of the IO and these Terms shall be upon written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or electronic) approval of the IO and these Terms by Media Company and Client. Any revisions to these Terms or the originally submitted IO will not be binding unless approved in writing by both Media Company and Client.
Revisions. Revisions to accepted IOs will be made in writing and acknowledged by both Parties in writing.
- AD PLACEMENT AND POSITIONING
Compliance with IO. Media Company will provide, within the scope of the IO, an Ad on the Site specified on the IO when such Site is visited by an Internet user.
Changes to Site. Media Company reserves the right to make changes to the Sites in its sole discretion. Media Company will use commercially reasonable efforts to provide Client prior notification of any material changes to the Site that Media Company deems may materially change or affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Client’s sole remedy for such change, Client may cancel the remainder of the affected placement without penalty within five (5) business days of such notification or finding.
Technical Specifications. Media Company will provide Client with final Advertising Materials technical specifications. Material changes by Media Company to the specifications of already-purchased Ads after the start of an IO will allow Client 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) provide Media Company with revised Advertising Materials; or (ii) if Client is unable to provide revised Advertising Materials in good faith within five (5) business days, Client may immediately cancel the remainder of the affected placement without penalty.
Editorial Adjacencies. Media Company acknowledges that certain Clients 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 Client 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 Client with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Client’s sole and exclusive remedy is to request in writing that Media Company remove the Ads within three (3) business days of receipt of such notice. After Client 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 business hours. If such correction materially and adversely impacts Deliveries under such IO, Client and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Client acknowledges and agrees that Client will not be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from any reason except that if Media Company fails to correct such violation in the sole discretion of Client within three (3) business days of receipt of Client notice to Media Company, Client’s sole remedy shall be to terminate this Agreement without penalty by providing Media Company with a three (3) business day notice of termination.
Payment. Invoices will be sent by Media Company upon completion of each month’s Delivery, or within 30 days of completion of the IO, whichever is earlier. All prices set forth in an IO are stated exclusive of VAT, GST and any other form of value-added or sales tax, and any such taxes, if applicable, shall be added to the invoice and be paid by Client. Invoices will be sent to Client’s billing address as set forth on the IO and will include information reasonably specified by Client such as the PO number. Client agrees to make payment 30 days from its receipt of invoice. If Client’s credit becomes impaired, Media Company may require payment in advance. Overdue amounts shall accrue interest at a rate of 1.5% compounded monthly until paid.
If payment is via credit card as specified in the IO, Client agrees and authorizes Media Company to charge Client’s credit card for an initial deposit (“Initial Deposit”) equal to that specified on the IO which will be applied to Client’s purchases of Leads at the end of the calendar month in which service is provided or the end of the Lead Campaign, whichever is sooner. Client agrees and authorizes Media Company to recharge Client’s credit card an amount as specified on the IO (“Auto Recharge Amount”) whenever Client’s Initial Deposit or subsequent deposit balance falls below the low balance threshold as specified on the IO (“Low Balance Threshold”) which charge will be applied to Client’s purchases of Leads at the end of the calendar month in which service is provided or the end of the Lead Campaign, whichever is sooner. Client agrees that all charges are non-refundable. Notwithstanding the above (except for the Initial Deposit), in any calendar month Media Company will not charge Client’s credit card more than the maximum monthly purchases (“Maximum Monthly Purchases”) amount as specified in the IO.
- AD MATERIALS
Submission. Client will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies. Client represents and warrants that the Advertising Material will not contain any Prohibited Code.
Late Creative and Late Commencement. If Advertising Materials are not received by the IO start date, or Custom Content Deliverables are not completed by the IO start date, or, Media Company, for any reason, is late in commencing an Ad Campaign, Media Company and Client understand that Delivery as specified in the IO is likely to be impacted and agree to negotiate a resolution or modification to the IO terms. If no resolution or modification can be agreed upon, the parties agree to a reduction in the total IO value equal to the revised and available Deliverable as specified by Media Company.
Damaged Creative. If Advertising Materials provided by Client are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Client within two (2) business days of its receipt of such Advertising Materials.
No Modification. Media Company will not edit or modify the images or banners associated with submitted Ads in any way, including, but not limited to, resizing the images or banners associated with submitted Ads, without Client’s approval.
Ad Tags. When applicable and approved by Media Company, Third Party Ad Server tags may be implemented. Client agrees to provide Third Party Ad Server tags in compliance with generally accepted industry standards, Media Company Policies and all applicable laws. For the avoidance of doubt, Personal Data shall include any data that otherwise meets the definition of Personal Data transferred from Media Company to Client, if any, via any Third Party Ad Server tags, Advertising Materials, software code associated with Advertising Materials, or any other mechanism allowed by this section IV. Ad Materials. For the avoidance of doubt, any such Personal Data provided to Client from Media Company shall be treated in accordance with XI. CONFIDENTIAL INFORMATION, NON-DISCLOSURE, DATA USAGE, PRIVACY AND LAWS, INTELLECTUAL PROPERTY, subsection (f).
- AD SERVING, TRACKING, REPORTING AND DELIVERY
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 Sites, Client may track delivery through such Third-Party Ad Server.
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:
The Controlling Measurement will be based on Media Company’s ad server unless otherwise agreed by Client and Media Company in the IO.
Media Company Reporting. If the Controlling Measurement will be based on Media Company’s ad server, then will make reporting available at least as often as monthly on its invoices.
If Media Company and Client agree in the IO to use a Third Party Ad Server for the Controlling Measurement, the Third Party Ad Server must (i) be certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”) and (ii) provide Media Company with an automated, daily reporting interface which allows for automated delivery of relevant and non-proprietary statistics to Media Company in an electronic form and substance that is approved by Media Company; provided, however, that Media Company must receive access to such interface within one (1) business day of Ad Campaign launch. If not, or if Third Party Ad Server malfunctions in any way during the IO term, the Controlling Measurement will be based on Media Company’s ad server for the duration of the IO unless otherwise agreed in writing by Media Company.
Notification may be given by such Third-Party Ad server that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Clients in which case new access for each IO is not necessary.
Bonus Impressions. When a Third-Party Ad Server is used, Media Company will not bonus more than 10% above the Deliverables specified on the IO without the prior written consent of Client. Where no Third-Party Ad Server is used, Media Company may bonus as many ad units as Media Company chooses unless otherwise affirmatively indicated on the IO not to do so. Client will not be charged by Media Company for any additional Deliverables above any level provided on the IO.
Delivery, Notification of Under-delivery and Makegood Procedure. Media Company will monitor delivery of the Ads and will notify Client either electronically or in writing as soon as reasonably possible if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Client and Media Company may arrange for a makegood consistent with these Terms to complete the Delivery of the IO. If no makegood can be agreed upon by both parties, the parties agree to a reduction in the total IO value equal to the value of the under-delivered portion of the IO. If Client has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Client is current on all amounts owed to Media Company under this or any other agreement with Client, Client 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 Ad Campaign. If an IO contains Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery or even delivery are not available. For the avoidance of doubt, Personal Data shall include any data that otherwise meets the definition of Personal Data transferred from Media Company to Client, if any, via any mechanism allowed by this section V. Ad Serving, Tracking, Reporting and Delivery. For the avoidance of doubt, any such Personal Data provided to Client from Media Company shall be treated in accordance with XI. CONFIDENTIAL INFORMATION, NON-DISCLOSURE, DATA USAGE, PRIVACY AND LAWS, INTELLECTUAL PROPERTY, subsection (f).
- LEAD CAMPAIGNS AND CPL DELIVERABLES
Leads and Lead Campaign. Media Company agrees to sell to Client and Client agrees to purchase from Media Company leads (“Leads” or “Lead Services”) on a non-exclusive basis and hereby grants Client a worldwide, non-exclusive, non-transferable, non-assignable license to the Leads. Lead Campaign specifications, including, but not limited to, start and end dates, delivery parameters, filters, pricing, quantities, are further defined on the IO. Client understands and acknowledges that Leads typically include Personal Data.
Delivery. CPL Deliverables are as specified on the IO. Unless otherwise provided on the IO, Media Company is not obligated to provide Client any CPL Deliverables and will make commercially reasonable efforts to notify Client if the specified CPL Deliverable quantities cannot be delivered by the Lead Campaign end date for any reason. Furthermore, the predictability, forecasting, and conversions for any such CPL Deliverables may vary and even delivery is not available.
Profiling Systems. Media Company may use internal systems, intelligence, profiling, analytics, algorithms, automation and/or human experience to profile contacts when delivering CPL Deliverables (“Profiling Systems”). Media Company reserves the right to use Profiling Systems to qualify contacts and Leads in lieu of asking certain profiling and qualifying questions on email forms and/or in phone scripts or otherwise, that may be included in the IO, in the delivery of CPL Deliverables.
Restrictions on Transfer of Leads. Client agrees not to at any time (except in connection with the sale of substantially all the assets of Client), sell, assign, or transfer the Leads to any other person, firm, entity, or organization other than an Affiliate. Subject to the foregoing, any sale, assignment or transfer of any Leads shall be made subject to contractually binding restrictions to ensure that the use of such Leads is consistent with applicable Privacy and Direct Marketing Laws.
Use of Leads; Sales Tactics. Client shall comply with all Privacy and Direct Marketing Laws that are applicable to the use or other processing of Personal Data included as part of the Leads. Without limiting the foregoing, Client agrees not to (i) knowingly make any false statements or misrepresentations or (ii) use overly aggressive or offensive tactics with contacts when following up on the Leads provided to Client by Media Company. As to any Personal Data, Lead Data, data contained within Leads, or any other data, provided to Client by Media Company that implicate EU Privacy and Direct Marketing Laws, Client agrees to accept and abide by the data protection agreement (“DPA”) provided by Media Company, including, where appropriate, both acting as joint controllers as provided by the same. As to any Personal Data, Lead Data, data contained within Leads, or any other data provided to Client by Media Company provided to Client by Media Company that implicate US Privacy and Direct Marketing Laws, Client agrees to accept and abide by the CCPA addendum.
Lead Accuracy. We take reasonable precautions to provide accurate Leads and that Leads will conform to the specifications as provided in the IO and any campaign delivery plan provided by Media Company to Client. Nevertheless, we cannot and do not guarantee the accuracy of Leads and therefore, all Leads are sold “AS-IS” and will be considered valid, unless the (i) telephone number for the Lead provided is not working or does not match the contact information (where such information is required to be obtained), (ii) the company name associated with the Lead does not exist (where such information is required to be obtained), (iii) the contact name associated with the Lead is invalid (where such information is required to be obtained), (iv) the Lead was created by a competitor, (v) the Lead is from an NPA-NXX not included on Client service list (where such information is required to be obtained), or (vi) the Lead does not otherwise match the specifications as provided in the IO or any campaign delivery plan provided by Media Company to Client (“Invalid Lead”). Media Company reserves the right to audit each disputed lead to verify the validity of the dispute. If Client receives an Invalid Lead and would like a replacement or refund, you must request a replacement or refund in writing within 7days of purchasing the Invalid Lead. Once Media Company confirms that Client purchased an Invalid Lead from Media Company, Client will receive a refund equal to the purchase price of the Invalid Lead which will be credited to the same credit card used for the purchase of the Invalid Lead, or, replaced by Media Company at Media Company’s discretion.
Lead Delivery. Media Company will deliver Leads to Client via API or the Passport Platform at the frequency and specification as provided in the IO or any campaign delivery plan.
VII. CUSTOM CONTENT AND CUSTOM CONTENT DELIVERABLES
Custom Content. Media Company agrees to sell to Client and Client agrees to purchase from Media Company various forms of Custom Content Deliverables including but not limited to whitepapers, IT journals, research papers, surveys, technical reports, reviews, webcasts, podcasts, video, and video to text and text to video translation and transcription services as further defined in the IO. Custom Content specifications, including, but not limited to, start and end dates, pricing, quantities, are further defined on the IO. Custom Content pricing on the IO does not include any Third Party subject matter expert (SME) costs related to the Custom Content or the production of the Custom Content.
Custom Content Rights and Use. Media Company shall utilize the Custom Content in association with the fulfillment of an Ad Campaign or Lead Campaign and its performance under the IO. In the event Client is current with its payment obligations hereunder, Media Company agrees that upon request from Client within 30 days of the Ad Campaign or Lead Campaign end date, to provide Client with a perpetual license to the Custom Content after the term of this IO and Agreement subject to the limitations herein. Media Company will provide client with the digital file of any text document, the MP4 video file of any webinar or video file, or the audio file of any audio-based content or podcast (“Custom Content Files”). Client understands that Media Company does not have the right to license or transfer any rights to Client to any Custom Content, including but not limited to, any webcast or podcast, served on any Third-Party platform whether placed there by Media Company or not. Notwithstanding any of the limitations as provided herein, Client agrees it shall indemnify, defend and hold Media Company harmless from any and all claims arising from its use of (i) the Custom Content Files or (ii) the Custom Content served on any Third-Party platform, after the end date of the Ad Campaign or Lead Campaign.
Custom Content Serving. Media Company retains the right, but not the obligation, to privately or publicly serve or cause to be served any Custom Content after the end date of the Ad Campaign or Lead Campaign unless otherwise notified by Client in writing.
Restriction on Use. Client agrees not to at any time (except in connection with the sale of substantially all the assets of Client), sell, assign, or transfer the Custom Content to any other person, firm, entity, or organization other than an Affiliate. For the avoidance of doubt, Personal Data shall include any data that otherwise meets the definition of Personal Data transferred from Media Company to Client, if any, via any mechanism allowed by this section VII. Custom Content and Custom Content Deliverables. For the avoidance of doubt, any such Personal Data provided to Client from Media Company shall be treated in accordance with XI. CONFIDENTIAL INFORMATION, NON-DISCLOSURE, DATA USAGE, PRIVACY AND LAWS, INTELLECTUAL PROPERTY, subsection (f).
VIII. CANCELLATION AND TERMINATION
Without Cause. Unless designated herein or on the IO as non-cancelable, either party may cancel the entire IO, or any portion thereof, as follows:
With 14 days’ prior written notice to the other party, without penalty, for any Deliverable other than as provided herein. For clarity and by way of example, if Client cancels a Lead Campaign or any other Ad Campaign eight (8) days prior to the delivery of the first Deliverable (first lead or first impression in this example), Client will only be responsible for the first six (6) days of those Deliverables.
With 30 days’ prior written notice to the other party, without penalty, for any Fixed Priced Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
Custom Content and Newsletter IOs are non-cancellable.
Client will remain liable to Media Company for any Third-Party costs incurred by Media Company related to any Deliverables prior to the effective date of termination. Client will pay for such costs within 30 days from receiving an invoice therefore.
Media Company may deliver to Client all CPL and CPA Deliverables in its pipeline prior to any termination date.
For Cause. Either Media Company or Client 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 ten (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 or Policy violations (including but not limited to those provided in Section IV(c). Additionally, if Client breaches its obligations by violating the same Policy three times, except as otherwise stated in these Terms with regard to specific breaches, violations or Policy violations, and receives timely notice of each such breach, even if Client cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Client 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 Client, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
Short Rates. Short rates will apply to canceled buys to the degree stated on the IO.
- FORCE MAJEURE
Generally. Excluding payment obligations, neither Vendor 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 which by definition shall include and limited to governmental expropriation or condemnation, electrical power grid outages, external telecommunications network failures, strikes and labor disputes, war, acts of terrorism, and acts of God including fire, flood, earthquakes, hurricanes, or tornados (“Force Majeure Event”).
Related to Payment. If Vendor’s ability to transfer funds to Third Parties has been materially negatively impacted by a Force Majeure Event, including, but not limited to, failure of banking clearing systems or a state of emergency, then Vendor will make every reasonable effort to make payments on a timely basis to Media Company. Subject to the foregoing, any delay will not in any way relieve Vendor from any of its obligations as to the amount of money that would have been due and paid without such condition, nor shall any such obligation be terminated or waived in the event that Media Company terminates an IO due to failure to make such transfer of funds.
Notice. Upon occurrence of a Force Majeure Event, the non-performing party shall promptly notify the other party that a Force Majeure Event has occurred and its anticipated effect on performance, including its expected duration. The non-performing party shall furnish the other party with periodic reports regarding the progress of the Force Majeure Event. The non-performing party shall use reasonable diligence to minimize damages and to resume performance.
Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company has the right to cancel the remainder of the IO without penalty by providing Vendor with a ten (10) day written notice.
- DISCLAIMERS, LIMITATION OF LIABILITY, AND INDEMNIFICATION
DISCLAIMERS. EACH PARTY AGREES THAT THEIR USE OF THE OTHER PARTY’S SERVICES AND THEIR CONNECTION WITH OR USE OF THE OTHER PARTY’S WEB SITE(S) ARE AT THEIR OWN RISK. EXCEPT AS SPECIFICALLY PROVIDED HEREIN OR PROHIBITED BY APPLICABLE LAW, MEDIA COMPANY SERVICES AND ANY MATERIALS, SITE INFORMATION OR OTHER SERVICES PROVIDED BY OR ON BEHALF OF MEDIA COMPANY BY ANY THIRD PARTY PURSUANT TO THIS AGREEMENT, OR OTHERWISE, ARE PROVIDED “AS IS” AND WITH ALL DEFECTS. EXCEPT AS SET FORTH IN SECTION XII(a), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDIA COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY MADE, OR THAT MAY HAVE BEEN MADE, IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, UNINTERRUPTED SERVICE, AND ANY WARRANTY ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE FOR ANY FACTORS AFFECTING ITS PERFORMANCE UNDER THIS AGREEMENT WHICH ARE BEYOND ITS CONTROL, INCLUDING WITHOUT LIMITATION ANY FAILURE, DISRUPTION, DOWNTIME, INTERRUPTION, DELAY, INACCURACY OR OTHER NON-PERFORMANCE IN CONNECTION WITH THE MEDIA COMPANY SERVICES IN ANY FASHION.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION FOR THE LOSS OF DATA, BUSINESS INTERRUPTION, OR LOST PROFITS, THAT IN ANY WAY ARISE OUT OF OR RELATE TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF RELIEF, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED TO THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF ANY CLAIM OR FINDING THAT A REMEDY SUFFERS A FAILURE OF ITS ESSENTIAL PURPOSE; AND IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF $1,000,000 (USD) OR THE AMOUNT PAID OR PAYABLE TO MEDIA COMPANY BY CLIENT UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE ANY CLAIM ARISES, WHICHEVER IS LESS. FOR THE AVOIDANCE OF ANY DOUBT, ANY AMOUNTS DUE AND OWING PURSUANT TO SECTION III, PAYMENT, SHALL NOT BE LIMITED BY THE LIMITATIONS ON LIABILITY AND DAMAGES SET FORTH IN THIS SECTION X. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
Indemnification. Subject to the limitations provided in Section X(b) herein, each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and each of its Affiliates and Representatives (collectively, the “Indemnified Party”) free and harmless from any and all claims, suits, obligations, investigations by any government authority, or other legal actions and proceedings brought by a Third Party to the extent arising out of any breach or alleged breach by the Indemnifying Party of this Agreement (collectively, “Claims”), and any obligations, liabilities, losses, fines, damages, costs and expenses (including attorneys’ fees and costs) (collectively, “Losses”) arising from or relating to such Claims. 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 any specifications, materials, authorization, guidance, suggestions, directives or information provided by the Client and/or 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 or (3) any user-generated content or (4) any editorial or general site content not directly related to Ads or Advertising Materials.
The Indemnified Party 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 without its prior written consent.
- CONFIDENTIAL INFORMATION, NON-DISCLOSURE, DATA USAGE, PRIVACY AND LAWS, INTELLECTUAL PROPERTY
Definitions and Obligations. “Confidential Information” or “Propriety 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.
Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” or “Proprietary 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; (vi) relates in any way to any Ad Campaign or Lead Campaign responder details or any Ad Campaign or Lead Campaign except for the IO Details. 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.
Additional Definitions. As used herein the following terms shall have the following definitions:
“User Volunteered Data” is personally identifiable information collected from individual users by Media Company directly related to and during delivery of an Ad pursuant to the IO and related exclusively to a CPM Deliverable (and not to any other type of Ad or Ad Campaign types including Lead Campaigns) but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Client.
“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.
“Performance Data” is data gathered during delivery of an Ad (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
“Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the Agreement; (B) gathered pursuant to the Agreement 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, or otherwise collected or compiled by Media Company, other than User Volunteered Data.
“Collected Data” consists of Agreement Details, Performance Data, and Site Data.
“Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the Agreement.
“EU Privacy & Direct Marketing Laws” means (i) prior to May 25, 2018, Directive 95/46/EC of the European Parliament and of the Council (the “Data Protection Directive”), and as of May 25, 2018, Regulation (EU) 2016/679 of the European Parliament and of the Council (the “GDPR”); (ii) Directive 2002/58/EC (the “e-Privacy Directive”) and any successor legislation thereto (including, for clarity, as and when legally effective, the final form of the Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications (the “e-Privacy Regulation”); (iii) all national and local laws, rules and regulations implemented under the Data Protection Directive, GDPR, e-Privacy Directive, or e-Privacy Regulation; (iv) all other laws, rules and regulations of the European Union, any member state of the European Economic Area, and of the United Kingdom that related to any activity performed in connection with this Agreement, including without limitation, all applicable telemarketing and other direct marketing laws, rules and regulations; and (v) Media Company’s obligations under the EU-US and the Swiss-US Privacy Shield arrangements, as applicable to this Agreement.
“US Privacy & Direct Marketing Laws” means (i) the US CAN-Spam Act of 2003, (ii) Telephone Consumer Protection Act of 1991, (iii) the California Consumer Privacy Protection Act (CCPA) including all regulations promulgated by the California Attorney General’s office, (iv) and all other US federal and state laws, regulations and rules relating to privacy and direct marketing, including telemarketing, applicable to any Deliverables and Services provided under this Agreement.
“Personal Data” means any information that relates to an identified or identifiable individual, including as may be provided by Media Company to Client under any service or offering subject to these Terms, and including as regulated under any Privacy & Direct Marketing Laws.
“Privacy & Direct Marketing Laws” mean any laws, regulations and rules relating to privacy, data protection and direct marketing (including telemarketing) applicable to use or other processing of Personal Data in connection with this Agreement, including without limitation any and all applicable US Privacy & Direct Marketing Laws and EU Privacy & Direct Marketing Laws and the laws of any other applicable jurisdiction.
“DNC” means all relevant do-not-call registries of telephone numbers (including mobile telephone and landline numbers) of any country or subdivision thereof.
Use of Collected Data.
Unless otherwise authorized by Media Company, Client 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 Agreement Details or Site Data; (B) disclose Agreement Details of Media Company or Site Data to any Third Party except as set forth in Section VII(d)(ii).
Client will require any Third Party or Affiliate used by Client in performance of this Agreement on behalf of Client to be bound by confidentiality and non-use obligations at least as restrictive as those on the Client.
Data Transfer. You acknowledge that if You wish to protect Your data when You are transmitting it to Media Company, it is Your responsibility to use a secure encrypted medium or connection to do so, and to only transfer data in accordance with any Privacy and Direct Marketing Laws.
Privacy and Direct Marketing Laws. Each party shall be solely responsible for identifying and complying with its respective obligations under Privacy and Direct Marketing Laws applicable to its activities under this Agreement. Without limiting the foregoing, Client shall use, store and otherwise treat Personal Data that it obtains as a result of this Agreement (whether via a transfer of such Personal Data between the parties, or directly from an individual who responds to an Ad) strictly in accordance with applicable Privacy and Direct Marketing Laws, including scrubbing such Personal Data against DNCs and any internal opt-out lists maintained by Client. The Parties agree to abide by and observe any legitimate requests received from any other individual or entity seeking to exercise or assist any individual or entity in exercising any valid rights that said individual or entity may have under Privacy and Direct Marketing Laws, including any request that the Party delete, or cease transfer or use of any Personal Data. As to any Personal Data, Lead Data, data contained within Leads, or any other data provided to Client by Media Company, or to Media Company by Client, that implicate EU Privacy and Direct Marketing Laws, under any offering, product, or service subject to these Terms, Client and Media Company agree to accept and abide by the data protection agreement (“DPA”) provided by Media Company, including, where appropriate, both Parties acting as joint controllers as provided by the same. As to any Personal Data, Lead Data, data contained within Leads, or any other data provided to Client by Media Company, that implicate US Privacy and Direct Marketing Laws, Client agrees to accept and abide by all CCPA regulations, including as to any Personal Data which is considered personal information as that term is defined by the CCPA. For the avoidance of doubt, this section f, Privacy and Direct Marketing Laws shall apply to any Platform Services offered in connection with Addendum A.
Intellectual Property. You acknowledge that, as between the Parties, Media Company owns and retains all right, title and interest in the Intellectual Property Rights in the Media Company Services and as otherwise identified. You own and retain all right, title, and interest in the Intellectual Property Rights in Your data. “Intellectual Property Rights” means: (i) copyrights and other rights associated with works of authorship; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; and (v) all registrations, applications, renewals, extensions, continuations, divisions, or reissues now or in the future.
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. Client represents and warrants that Client 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. Client represents and warrants that the use of any content contained in the Ads or Advertising Materials will not (i) conflict with, infringe upon or misappropriate the rights of any other party’s intellectual property or other proprietary rights, (ii) breach any other party’s rights or privacy, or (iii) contain or promote Non-Permitted Materials.
Assignment. Client may not 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.
Entire Agreement. The IO and this Agreement, constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, Policies, guidelines, disclaimers, statements, understandings and agreements, either oral or written, between the parties with respect to said subject matter except that the parties agree there may be multiple active or current IOs between the parties each with its respective corresponding terms and conditions and that the terms and conditions for each IO shall stand on its own and be exclusive to the corresponding IO. The IO and this Agreement may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
Compliance with Law. Client 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.
Governing Law; Venue; Miscellaneous. If there is a conflict between the terms of any of this Agreement, the IO, or any Policies, the documents will govern in the following order: the IO, this Agreement, and any Policies. The provisions of this Agreement shall be interpreted and enforced in accordance with the laws of the State of Texas, excluding its conflicts-of-law rules. You agree that the courts of the state of Texas shall have jurisdiction to hear any dispute related hereto, and irrevocably consent to venue for any suit or proceeding pertaining hereto being in a court of competent jurisdiction, within the County of Dallas, Texas. In any action or suit to enforce any right or remedy under this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorney’s fees. The invalidity or unenforceability of any provision hereof, shall not affect any other provision, and in such event, this Agreement shall be construed as if such invalid or unenforceable provision were omitted. The captions of the paragraphs of this Agreement are for ease of reference only and shall not be used to interpret or alter any provision hereof. A signature sent by facsimile or other electronic means shall be as valid as an original signature.
Notices. All notices required or permitted to be given under this Agreement must be in writing and delivered to the other party by any of the following methods: (a) hand delivery, (ii) certified U.S. mail, return receipt requested, postage prepaid, (iii) overnight courier, (iv) facsimile, or (v) electronic mail. All notices to Media Company must use the address set forth herein or the email address: firstname.lastname@example.org. All notices to Client will be sent to the contact and address specified on the IO. All notices will be deemed received as follows: (i) if by hand-delivery, on the date of delivery, (ii) if by certified U.S. mail, three business days after mailing or the date of receipt, whichever is earlier, (iii) if by overnight courier, on the date receipt is confirmed by such courier service, (iv) if by facsimile, on the date of receipt subject to obtaining a sent receipt from the sending facsimile machine, or (v) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated.
Survival. Sections III, V(d), VI(c)(d), VII(b)(c)(d), X, XI, and XII will survive termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request.
Headings. Section or paragraph headings used in these Terms are for reference purposes only and should not be used in the interpretation hereof.