Media Purchase Terms and Conditions
GP International, LLC
[Updated November 22, 2017]
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.
“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.
“Agency” means the advertising agency listed on the IO, if applicable.
“Collected Data” consists of IO Details, Performance Data, and Media Company Properties Data.
“Confidential Information” has the meaning set forth in Section XII A below.
“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 Material” has the meaning set forth in Section V A iv below.
“Deficiency Notice” has the meaning set forth in Section IV C below.
“Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).
“Discloser” has the meaning set forth in Section XII A below.
“Editorial Adjacency Guidelines” has the meaning set forth in Section II C below.
“Force Majeure Event” has the meaning set forth in Section VIII A below.
“IO” means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Media Company Properties for the benefit of Agency or Advertiser.
“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.
“Media Company” means the GP International, LLC.
“Media Company Properties” means Period Tracker for iOS and Android.
“Media Company Properties 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 Media Company Properties, brand, content, context, or users as such; or (C) entered by users on any Media Company Media Company Properties other than User Volunteered Data.
“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 Media Company Properties Data or IO Details.
“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 Media Company Properties on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Recipient” has the meaning set forth in Section XII A below.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO. “Terms” means these Standard Terms and Conditions for Internet Advertising for digital media purchases on the Media Company Properties.
“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.
“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.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
I. INSERTION ORDERS AND INVENTORY AVAILABILITY
A. IO Details. From time to time, Media Company and Advertiser (or its Agency, if applicable) may execute IOs that will be accepted as set forth in Section II B below. Each IO will specify, as applicable: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, and (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign. 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.
B. Availability; Acceptance. Media Company will have five (5) business days of receipt of an executed IO to notify Advertiser (or its Agency, as applicable) if the specified inventory is available and whether it accepts or modifies the terms of the proposed IO. If Media Company does not accept the terms of the IO in writing within this period, the IO will be deemed rejected. All IO’s are subject to these Terms which are incorporated herein by this reference. A binding IO shall only be in effect upon mutual written agreement (email is sufficient) between Media Company and Advertiser (or its Agency, as applicable). Modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
C. Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
II. AD PLACEMENT AND POSITIONING
A. Changes to Media Company Properties. Media Company will use commercially reasonable efforts to provide Advertiser (or its Agency, as applicable) at least 10 business days’ prior notification of any changes to the Media Company Properties 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 Advertiser’s sole remedy for such change, Advertiser (or its Agency, as applicable) may cancel the remainder of the affected placement without penalty within such 10-day notice period.
B. Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency final technical specifications within five (5) business days of the acceptance of an IO. Material changes by Media Company to the specifications of already-purchased Ads after that five (5) 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 Advertiser’s cost, and with final creative approval of Advertiser (or its Agency, as applicable), within a reasonable time period to fulfill the guaranteed levels of the IO; or (iii) accept a comparable replacement.
C. 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. 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 make-goods or, if no make-good 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 make-good and a credit can be shown to be commercially infeasible for the Advertiser (and its Agency, if applicable) and Media Company will negotiate an alternate solution. After Advertiser (or its Agency, as applicable) 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 two (2) business days. 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 Media Company Properties, 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 Media Company Properties 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 Media Company Properties’ 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 Media Company Properties’ terms of use.
III. PAYMENT AND PAYMENT LIABILITY
A. Invoices. Media Company should invoice Advertiser (and its Agency, if applicable) 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. The initial invoice will be sent by Media Company upon execution of the IO which shall be due the earlier of: (i) prior to the first publish date of the Ad or (ii) ten (10) days from the invoice date. Invoices will be sent to Advertiser’s (or its Agency’s, as applicable) billing address as set forth on the IO and will include information reasonably specified by Advertiser (or its Agency, as applicable), 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.
B. Taxes. Advertiser shall be responsible for all federal, state, municipal and other taxes imposed on all services performed by Media Company.
C. Proof Of Performance. Upon written request from the Advertiser (or its Agency, as applicable), Media Company should provide proof of performance for the prior 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 below.
D. Payment Date. Agency will make payment as set forth in Section III A above, or as otherwise stated in a payment schedule set forth on the IO. Media Company shall have no duty to provide the services and publish any Ads until it has received payment from Advertiser (or its Agency, as applicable).
E. Agency 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 the 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 D 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 Media Company Properties due to such non-clearance if such other advertisers’ credit is not in question. Upon written 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, in its sole discretion.
IV. REPORTING
A. Confirmation of Campaign Initiation. Media Company will, within three (3) business days of the start date on the IO, provide confirmation to Advertiser (or its Agency, as applicable), either electronically or in writing, stating whether the components of the IO have begun delivery.
B. Media Company Reporting. If Media Company is serving the campaign, Media Company will make reporting available at the end of each IO campaign, either electronically or in writing, unless otherwise specified on the IO. Reports will be summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO. Once Media Company has provided the online or electronic report, it agrees that Advertiser (or its Agency, as applicable) is entitled to reasonably rely on it, subject to provision of Media Company’s invoice for such period.
C. Make-goods for Reporting Failure. If Media Company fails to deliver an accurate and complete report by the time specified, Agency may initiate make-good discussions pursuant to Section VI, below. If Advertiser (or its Agency, as applicable) informs Media Company in writing that Media Company has delivered an incomplete or inaccurate report, or no report at all (a “Deficiency Notice”), Media Company will cure such failure within five (5) business days of receipt of such notice. If Media Company does not dispute the Deficiency Notice or cure the reported deficiency within cure period, the Deficiency Notice will be valid and Advertiser will be entitled to a reasonable make-good to be negotiated in good faith by Media Company and Advertiser (or its Agency, as applicable).
V. CANCELLATION AND TERMINATION
A. Without Cause. Unless designated on the IO as non-cancelable, Advertiser (or its Agency, as applicable) may cancel the entire IO, or any portion thereof, as follows:
i. With 14 days’ prior written notice to Media Company, 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.
ii. With seven (7) days’ prior written notice to Media Company, 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.
iii. With 30 days’ prior written notice to Media Company, 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.
With respect to items in subparagraphs i through iii above, Advertiser shall pay Media Company a cancellation fee equal to twenty percent (20%) of the cancelled portion of the IO, unless an advanced payment in made by Advertiser, in which case, Advertiser shall only be entitled to a make-good or refund of 80% of the amounts advanced for the cancelled portion of the IO.
iv. Notwithstanding any of the foregoing, 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. If Advertiser has not already advanced the fee for such Custom Material, Advertiser (or its Agency, as applicable) will pay for such Custom Material within 10 days from receiving an invoice therefore.
B. For Cause. Either Media Company or Advertiser (or its Agency, as applicable) 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 Advertiser (or its Agency, as applicable) 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 Advertiser (or its Agency, as applicable) cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Advertiser (or its Agency, as applicable) 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 Advertiser (or its Agency, as applicable), then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
C. Short Rates. Short rates will apply to canceled buys to the degree stated on the IO.
VI. MAKE-GOODS
A. Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Advertiser (or its Agency, as applicable) 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 make-good consistent with these Terms.
B. Make-good 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 make-good flight, either on the IO or at the time of the shortfall. If no make-good 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 Advertiser (or its Agency, as applicable) is current on all amounts owed to Media Company under any other agreement with such Advertiser, Advertiser 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. Media Company may, in its sole discretion, provide a make-good or extend any Ad beyond the period set forth on the IO.
C. 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 make-goods are not available.
VII. BONUS IMPRESSIONS
A. With Third Party Ad Server. Where Agency uses a Third Party Ad Server, Media Company will not bonus more than 20% above the Deliverables specified on the IO without the prior written consent of Agency. Permanent or exclusive placements will run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad Server activity. Advertiser will not be charged by Media Company for any additional Deliverables above any level guaranteed or capped on the IO. If a Third Party Ad Server is being used and Agency notifies Media Company that the guaranteed or capped levels stated on the IO have been reached, Media Company will use commercially reasonable efforts to suspend delivery and, within 48 hours of receiving such notice, Media Company may either (i) serve any additional Ads itself or (ii) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser but only (A) after such notice has been provided, and (B) to the extent such charges are associated with over-delivery by more than 20% above such guaranteed or capped levels.
B. 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. Advertiser (or its Agency, as applicable) will not be charged by Media Company for any additional Deliverables above any level guaranteed on the IO.
VIII. FORCE MAJEURE
A. Generally. Excluding payment obligations, neither Advertiser (or its Agency, as applicable) 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, terrorist attacks, cyber-attacks, acts of war 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 make-good is reasonably acceptable to Advertiser (or its Agency, as applicable), Media Company will allow Advertiser 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, Advertiser will have the benefit of the same discounts that would have been earned had there been no default or delay.
B. 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 and Media Company may suspend the services without liability until such time as payment is received.
C. Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Advertiser (or its Agency, as applicable) has the right to cancel the remainder of the IO without penalty.
IX. AD MATERIALS
A. Submission. Agency will submit Advertising Materials pursuant to Section II C in accordance with Media Company’s then-existing Policies. \
B. 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 and will have no liability to Advertiser for any shortfall in performance. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX B but fails to commence a campaign on the IO start date.
C. Compliance. Media Company reserves the right within its sole discretion to reject or remove from its Media Company Properties any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the Media Company Properties 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 sole discretion to reject or remove from its Media Company Properties any Ads for which the Advertising Materials or the Media Company Properties to which the Ad is considered indecent, pornographic, racist, or 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 Media Company Properties, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.
E. 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 Advertiser (and its Agency, if applicable) within two (2) business days of its receipt of such Advertising Materials.
G. No Modification. Media Company has the right in its reasonable discretion, without liability to Advertiser, to resize the Ad, without Advertiser’s approval; provided, however, Media Company may not change the substance of the Advertising Material or otherwise edit its content without the approval of the Advertiser (and its Agency, if applicable). Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
H. Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.
I. Trademark Usage. Media Company, on the one hand, and Advertiser (and its Agency, if applicable), 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, which approval shall not be unreasonably withheld or delayed.
X. INDEMNIFICATION
A. 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 XIII, or (ii) Media Company’s display or delivery of any Ad in breach of Section IX E.
B. 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 XIII, (ii) Advertiser’s violation of Policies, or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Media Company in accordance with these Terms or an IO.
C. 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 or Section XIII B.
D. 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.
XI. DAMAGES EXCLUSIONS; LIMITATION OF LIABILITY
Excluding Agency’s, Advertiser’s, and Media Company’s respective indemnity 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. To the maximum extent permitted by law, and except for Media Company’s indemnity obligations under Section X, damages that result from Media Company’s breach of Section XII, or Media Company’s willful misconduct, the maximum liability for Media Company under an IO shall be limited to the amount of fees paid under the applicable IO.
XII: NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
A. 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.
B. 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.
C. Use of Collected Data. Unless otherwise authorized by Media Company, in its sole discretion, Advertiser will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing for its own internal purposes so long as it is not joined with any IO Details or Media Company Properties Data or otherwise violate Media Company’s privacy published policy; (B) disclose IO Details of Media Company or Media Company Properties Data to any Affiliate or Third Party except as set forth in Section XII D.
D. Third Party Sharing. 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.
E. User Volunteered Data. All User Volunteered Data is the property of Media Company, is subject to the Media Company’s posted privacy policy, and is considered Confidential Information of Media Company. Any other use of such information will be set forth on the IO and signed by both parties.
F. Privacy Policies. Agency, Advertiser, and Media Company will post on their respective 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.
G. 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.
H. 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 C 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.
XIII. WARRANTIES; WARRANTY DISCLAIMER
A. By Advertiser. Advertiser represents and warrants to Media Company that: (i) Advertiser owns or has the appropriate license to use and permit Media Company to use any and all Advertising Materials provided to Media Company hereunder; (ii) no part of Advertising Materials contains or will contain any obscene, defamatory or libelous matter, nor will Advertising Materials, in any way, infringe upon or violate any copyright, trademark, patent, right of privacy or any other rights (statutory, proprietary or otherwise); (iii) Advertiser, the Advertising Materials, the Ads and the distribution of the Advertising Materials and the Ad as contemplated by the IO will not violate the provisions of any US law, regulation, ordinance or ruling of any court, government body or agency; (iv) Advertising Materials does not and will not contain any coupon, tie-in or other promotion for any products other than Advertiser’s products unless agreed to in writing in advance by Media Company.
B. By All Parties. Media Company, Advertiser, and, if applicable, Agency, represent and warrant to the other that: (i) each has full power and authority to enter into and perform under each IO; (ii) each IO (a) has been and will be duly authorized, executed and delivered by each party, and (b) constitutes and will constitute a valid and binding obligation of each party; (iii) performing under each IO does not and will not breach, conflict with or constitute a default under any other agreement, arrangement or instrument applicable to each party; and (iv) the person executing and delivering each IO is duly authorized to do so.
C. Warranty Disclaimer. EACH DELIVERABLE IS PROVIDED, AND ADVERTISER ACCEPTS EACH DELIVERABLE, “AS IS” WITHOUT OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO ITS PERFORMANCE, ACCURACY, OR COMPLETENESS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MEDIA Company HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF ADVERTISER’S USE OR PERFORMANCE OF THE SERVICES, INCLUDING COMPLIANCE WITH LAW, IS, AND REMAINS, WITH ADVERTISER.
XIV. MISCELLANEOUS
A. Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser 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.
B. Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
C. Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
D. Conflicts; 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 California. 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 the state courts located in Riverside County, California 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.
E. Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO. All notices to Advertiser will be sent to the address specified on the IO.
F. Survival. Sections III, V A (with respect to cancellation fees), VI, X, XI, XII, 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.
G. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.