Our Media LLC:
DIGITAL ADVERTISING TERMS AND CONDITIONS
1. SERVICES. These Standard Terms and Conditions govern the terms under which Our Media LLC: may place advertisements from Advertiser on Our Media’s Digital Network. These Standard Terms and Conditions, together with the attached Insertion Order (the “I.O.”, together with these Standard Terms and Conditions, the “Agreement”), constitute the entire agreement between Our Media LLC and Advertiser. No other conditions, provisions, or terms of any sort appearing in any writings, payments, or other communications to Our Media LLC made in connection with such orders will alter or supplement this Agreement. References to “Advertiser” in these Standard Terms and Conditions means the advertiser as specified in the attached I.O.
2. POSITIONING/DELIVERY OF ADS. EXCEPT AS EXPRESSLY PROVIDED IN THIS I.O., ALL SERVICES AND RELATED MATERIALS ARE PROVIDED TO ADVERTISER “AS IS” WITHOUT ANY REPRESENTATION OR WARRANTY. Our Media LLC will use commercially reasonable efforts to deliver the ad units (“Ad Units”) as specified in the I.O. provided that, notwithstanding any line item breakout in the I.O., Our Media LLC is only obligated to deliver the aggregate number of impressions in the I.O. as a whole. Our Media LLC has no obligations to deliver “click-throughs” or “acquisitions”. Unless this I.O. requires Our Media LLC to deliver an aggregate number of impressions or to place an Ad Unit on a specific Our Media LLC property or page, (a) Our Media LLC has no obligation to publish, post or otherwise deliver any impressions in any Our Media LLC property, (b) Our Media LLC makes no guarantees with respect to the method Our Media LLC uses for measuring delivery or with respect to the accuracy of our measurement and (c) the positioning of Ad Units within the Our Media LLC properties (including without limitation timing of delivery) is at Our Media LLC’s sole discretion.
3. AD SUBMISSION. Creative must be received at least five (5) business days for static creative or ten (10) business days for rich media creative prior to campaign start date. Advertiser shall not drop pixels into the Creative (through means of a java script tag or otherwise) for purposes of re-targeting the consumer. There are no modifications to the Creative for a current campaign. Send Creative to email@example.com
4. TERM and TERMINATION. This Agreement shall be for the term in months stated on the I.O. (“Term”) and shall commence on the date this Agreement is executed, unless this Agreement is amended in Term or terminated sooner in accordance with this Agreement. Advertiser may terminate this Agreement upon 30 days’ prior written notice to Our Media LLC before the latest “end date” specified in the I.O. Advertiser may cancel with no penalty if at least 30 days advanced notice is given prior to the agreed-upon start date. Cancellations or changes in orders must be made in writing to Our Media LLC. If less than 30 days’ notice is given, Advertiser is 100% accountable for the cost of impressions delivered until the cancellation date. If a contracted program is not completed, program rates will be adjusted to rates earned based on impressions run and current Advertising Program rates, and Advertiser will be billed for the applicable adjustment. If contracted program is for exclusive sponsorship advertising, Advertiser is 100% financially accountable for each day of the Term, regardless of whether Advertiser submitted Creative any day following the commencement date stated on the I.O. Advertiser understands and agrees that Our Media LLC reserves the right, at its absolute discretion, and at any time, to reject, cancel, or remove any Creative (any URL link therein) that is considered inappropriate to Our Media LLC or that in any way interferes with, or is contrary to Our Media LLC’s policies, whether or not the same has previously been accepted and/or run. Such cancellation or rejection shall not preclude payment on similar Creative previously run.
5. TERMS OF PAYMENT. Advertiser will pay Our Media LLC the fees as set forth in the I.O. Our Media LLC will invoice Advertiser for all fees under this Agreement, and Advertiser will pay Our Media LLC all invoiced amounts within 30 days of Advertiser’s receipt of an invoice.
6. LIMITATION OF LIABILITY/MAKE GOODS. If (a) Our Media LLC fails to deliver, in aggregate, the number of total impressions (if any) in the I.O. by the end of the Term, or (b) an Ad Unit fails to appear or function as provided in this I.O. for any reason, Our Media LLC’s liability is limited to the following: (i) a pro rata refund of the advertising fee representing undelivered or inaccurately delivered impressions, (ii) placement of the Ad Unit at a later time in a comparable position, or (iii) extension of the Term, with a pro rata refund representing any remaining undelivered or inaccurately delivered impressions at the end of such extended term. IN NO EVENT SHALL Our Media LLC OR ITS AFFILIATES BE RESPONSIBLE FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, RELATED TO THIS I.O., EVEN IF ADVERTISER HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES.
7. GRANT OF RIGHTS. Advertiser grants Our Media LLC under this Agreement the right and license to use, reproduce, transmit and distribute its Creative. Creative shall mean Advertiser’s creative materials including without limitation, text, graphics, and other materials provided by Advertiser to Our Media LLC. Advertiser and its agency, if applicable, represents to Our Media LLC that the Creative submitted by it for Our Media LLC’s Digital Network contains no illustrations, text or images that violate the proprietary right of any third party and that such Creative is not libelous or obscene.
8. THIRD PARTY AD SERVERS
(a) Our Media LLC will track delivery through its ad server (DoubleClick for Publishers) and Advertiser will also track delivery through its proprietary or subcontracted 3rd Party Ad Server identified in the I.O. Advertiser may not substitute the 3rd Party Ad Server specified in the I.O. without Our Media LLC’s consent. Our Media LLC and Advertiser agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide placement-level activity reports to each other. In the event that Our Media LLC’s ad server measurements are higher than those produced by the Advertiser’s 3rd Party Ad Server by more than 25% over the invoice period, Advertiser will facilitate a reconciliation effort between Our Media LLC and 3rd Party Ad Server. Advertiser must alert Our Media LLC in writing about the discrepancy. If the discrepancy cannot be resolved and Advertiser has made a good faith effort to facilitate the reconciliation effort, Advertiser reserves the right to cancel this Agreement within 14 days of the discrepancy’s discovery or pay Our Media LLC based on Our Media LLC’s Ad Server reported data, plus a 10% upward adjustment to delivery. Notwithstanding the foregoing, any ad server measurements provided by Advertiser must be delivered to Our Media LLC no later than 30 days following the conclusion of the prior delivery month. If such ad server measurements are not received within such timeframe then Our Media LLC shall invoice Advertiser for delivered media as reported by DoubleClick for Publishers.
(b) Where an Advertiser is utilizing a 3rd Party Ad Server and that 3rd Party Ad Server cannot serve the ad, the Advertiser shall have a one-time right to temporarily suspend delivery under the I.O. for a period of up to 72-hours. Upon written notification by Advertiser of a non-functioning 3rd Party Ad Server, Our Media LLC has 24 hours to suspend delivery. Following that period, Advertiser will not be held liable for payment for any ad that runs within the immediate 72-hour period thereafter until Our Media LLC is notified that the 3rd Party Ad Server is able to serve ads. After the 72-hour period passes and Advertiser has not provided written notification that Our Media LLC can resume delivery under the I.O., Advertiser will pay for the ads that would have run or are run after the 72-hour period but for the suspension and can elect Our Media LLC to serve ads until its 3rd Party Ad Server is able to serve ads. If Advertiser does not so elect for Our Media LLC to serve the ads until its 3rd Party Ad Server is able to serve ads, Our Media LLC may utilize the inventory that would have been otherwise used for Our Media LLC’s own advertisements or advertisements provided by a third party.
(c) Upon notification that the 3rd Party Ad Server is functioning, Our Media LLC will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Our Media LLC owing a makegood to Advertiser.
(d) Where a certain advertising campaign requires a 70% viewability threshold, Our Media LLC shall approve the third party vendor engaged by Advertiser for monitoring and reporting purposes. In the event the 70% viewability threshold is met, Our Media LLC shall invoice Advertiser for 100% of impressions delivered.
9. FOURTH PARTY PIXEL VENDOR
(a) 4th Party Vendor(s) shall be defined herein as a vendor that is not a 3rd Party Ad Server and not the billing party.
(b) Should Advertiser use a 4th Party Vendor with the capability to monitor and/or block advertising impression delivery, Advertiser shall notify Our Media LLC in writing before this IO is executed. All 4th Party Vendors that employ monitoring pixels on Ad Units shall execute Our Media LLC’s standard non-disclosure agreement. Our Media LLC shall not pay for some or all of the serving fees for tracking pixels by 4th Party Vendors without the prior written consent of Our Media LLC which shall be reflected in the IO. All dollar amounts and payment terms shall be added to the existing CPM; provided, that, such rates have not been communicated to Our Media LLC when securing its consent. 4th Party Vendors shall not collect audience data without prior written consent from Our Media LLC, and if consent is granted 4th Party Vendors represents and warrants that it shall not disclose any such audience data to any party other than 4th Party Vendor, Advertiser and/or Our Media LLC. 4th Party Vendors shall not provide traffic tags that distribute 4th Party Vendor advertising units preceding the Ad Units, unless Our Media LLC consents within the IO. Provided that Our Media LLC does not permit the distribution of 4th Party Vendor advertising units to precede the Ad Units, Our Media LLC must review and agree to blocking parameters in writing before the advertising units run. Impressions that are blocked from delivering by 4th Party Vendor tags are not eligible for makegood unless parameters are already determined.
10. INDEMNIFICATION and INSURANCE.
(a) Advertiser shall defend, indemnify, and hold Our Media LLC, its officers, directors, employees, agents, franchises, and independent contractors (“Company’s Parties”), harmless of, from and against any and all claims, liabilities, costs, reasonable attorneys’ fees, losses or expenses, directly or indirectly incurred by Company’s Parties as a result of Advertiser’s (or its owners, directors, employees, representatives or agents) default or material breach of this Agreement, grossly negligent acts, willful misconduct, or arising out of any material, creative logos, or content provided by Advertiser which has not been edited or changed in any way by Our Media LLC, including without limitations, claims or suits for libel, copyright or trademark infringement, privacy rights, or any other violations of federal, state, or local law. This provision shall survive expiration or termination of this Agreement.
(b) Our Media LLC agrees to indemnify and hold harmless Advertiser, its owners, members, officers, directors, employees, agents, franchises, and independent contractors (“Advertiser’s Parties”) from and against any and all claims, liabilities, costs, attorney’s fees, losses or expenses, directly or indirectly incurred by Advertiser’s Parties as a result of Our Media LLC’s (or its owners, directors, employees, or agents) (i) negligence, gross negligence or willful misconduct in the performance of our duties and obligations hereunder, (ii) infringement of a third party’s intellectual property rights by Our Media LLC or its products and services, (iii) material breach of this Agreement, or (iv) violation of applicable law by Our Media LLC or its products and services.
(c) Insurance. Our Media LLC shall obtain and maintain at its own expense, during the term of this Agreement and for a period of two (2) years thereafter, (i) a standard Commercial General Liability insurance policy with a limit of $5,000,000 per occurrence and in the aggregate, including coverage for products/completed operations and contractual liability coverage, which (1) specifically covers Our Media LLC’s contractual liabilities hereunder; and (2) lists Advertiser as additional insured. Coverage limits may be satisfied with a combination of general liability coverage and umbrella liability coverage; (ii) Our Media LLC shall also carry statutory Worker’s Compensation Insurance, including Employer’s Liability insurance (in an amount not less than $1,000,000) per accident or employee illness; and (iii) all insurance coverage shall be written with a company or companies having an AM Best rating of A- with a financial size classification of no less than VI, and shall be required to provide Advertiser with at least thirty (30) days prior written notice of any modification, cancellation or exhaustion of limits. Our Media LLC shall provide Advertiser with such evidence of coverage as may be reasonably acceptable to Advertiser within ten (10) days following the execution of this Agreement.
11. CONFIDENTIAL INFORMATION. Neither party shall release any non-public information regarding this Agreement (including advertising rates), or such party’s relationship with the other party including without limitation in press releases, promotional or merchandising materials, without the prior consent of the other party.
12. ASSIGNMENT. This Agreement may not be assigned by either party without non-assigning party’s prior written consent.
13. FORCE MAJEURE. Neither party shall be considered in default in the performance of its obligation should its performance thereof be delayed or prevented by force majeure. “Force majeure” shall include, but shall not be limited to: hostilities, revolution, riots, strikes, epidemic, accident, fire, flood, earthquake, wind storm, explosion, lack of or failure of transportation facilities or power facilities, regulation or ordinance, any act or requirement of any government or governmental agency having or claiming to have jurisdiction over the subject matter of this Agreement or the parties, any act of God, or any cause, which is reasonably beyond the control and without the fault or negligence of the parties.
14. RELATIONSHIP OF PARTIES. It is not the intention or the purpose of this Agreement nor shall any provision herein create nor shall the same be construed as creating any type of partnership or joint venture of the parties hereto. This Agreement shall not be construed to provide for or communicate that we have or are attempting to acquire any financial interest, direct or indirect, in Advertiser, Advertiser’s business, or Advertiser’s representative Agency, if one exists. We shall not be deemed to be a representative of Advertiser for any purpose whatsoever except those expressly stated herein. An Advertising Agency may represent and warrant that it is authorized to sign this Agreement and place advertising on behalf of an Advertiser named on the front side of this Agreement and the Advertising Agency may deduct the industry standard Agency commission (currently 15%) upon payment to us for services subsequently performed by us. Advertiser may change its representative Agency, upon notice to us, and the successive Agency shall be entitled to any commissions from the performance of our services.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties hereto. This Agreement supersedes all prior communications, representations, terms, conditions or agreements, oral or written, between the parties and no waiver or modification to this Agreement shall be effective unless it is in writing, signed by the parties. In the event of a conflict between the terms of this Agreement and the terms of any other insertion order or document provided by Advertiser, the terms of this Agreement shall supersede and govern.
16. NOTICES. Any notices to be given under this Agreement shall be deemed adequate if given in writing and sent by certified or registered international mail, by recognized air courier, by electronic mail, or by facsimile transmittal at a fax number known to be maintained by the party to whom notice is to be given, coupled with a copy of the fax confirmation sheet. Notice shall be deemed given when it is received.
17. MISCELLANEOUS. This Agreement shall bind and inure to the benefit of each of the parties and their successors, representatives, and heirs. The person signing this Agreement on the Advertiser’s behalf has the authority to bind the Advertiser to this Agreement. This Agreement shall be deemed to have been made in the State of California and shall be governed and interpreted in accordance with its laws, which laws shall prevail in the event of any conflict of law. If any part of this Agreement is held invalid or unlawful by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect.