KEYNES ADDENDUM TO THE AAAA/IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS, VERSION
This addendum (the “Addendum”) supplements and is made a part of the American Association of Advertising Agencies and Interactive Advertising Bureau Standard Terms and Conditions for Internet Adverting for Media Buys One Year or Less, Version 3.0 (located at https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf, as such location may be updated by the IAB from time to time) (the “IAB Media Terms”). Terms defined in the IAB Media Terms shall have the same meaning in this Addendum unless otherwise stated herein. The parties agree that the IAB Media Terms and this Addendum (hereafter collectively referred to as the “Agreement”) shall govern all media buys between Agency and Media Company entered into pursuant to an IO referencing this Agreement. Any conflict between the terms set forth in this Agreement and the terms set forth in any IO shall be resolved in accordance with Section XIV.d. of the IAB Media Terms, as modified in this Addendum. The terms of the IO, along with this Agreement, supersede all terms and conditions previously agreed upon regarding the subject matter of such media buys.
For any IO entered directly between Advertiser and Media Company, all references to “Agency” in the IAB Media Terms and this Addendum will refer to the Advertiser and Sections X.c. and XII.h. of the IAB Media Terms will not apply. For any IO entered between an Agency on behalf of its Advertiser: (a) Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to this Agreement and each IO, and that all of Agency’s actions related to this Agreement and each IO will be within the scope of such agency; (b) upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser which could include, for example, Advertiser’s acknowledgment that Agency is its agent and is authorized to act on its behalf in connection with the IO and this Agreement; and (c) upon request Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.
The information contained in this Agreement and the applicable IO is confidential and proprietary to Media Company. For purposes of clarity, the terms of this Agreement and the applicable IO shall not be shared by Agency or Advertiser with any individuals or entities except where required to manage the media buys subject to the terms of the Agreement, or otherwise effectuate the terms of the Agreement, and only in the event such individuals or entities are subject to confidentiality obligations at least as protective as those set forth herein.
The IAB Media Terms are hereby amended as follows:
- The term “Deliverable” or “Deliverables” shall be interpreted to include programmatic media inventory served on Network Properties
- The definition for the term “Media Company” shall be replaced with the following: “‘Media Company’ means Keynes Digital, Inc.”
- In addition to websites, the term “Media Company Properties” and “Network Properties” shall be interpreted to include mobile applications, Connected TV devices, gaming consoles, as well as other platforms and properties where digital advertising may be delivered.
2. Section I. (Insertion Orders and Inventory Availability)
- Section I.b. (Availability; Acceptance) is modified by adding the following to the beginning of the last sentence: “Subject to the provisions set forth below regarding extending the IO.”
- Section I.c. (Revisions) is modified by adding the following sentence at the end of that Section: “Notwithstanding the foregoing, Advertiser or Agency may subsequently renew the IO under the same terms and conditions for an extended term by providing verbal notice to Media Company prior to the end of the IO, and Media Company shall follow up with written confirmation (email acceptable) of such extension.” For purposes of clarity, any such renewals or extensions shall be governed by the terms and conditions of the original IO unless otherwise agreed to in writing by the parties.
3. Amendments to Section II. (Ad Placement and Positioning)
- The first sentence of Section II.a. (Compliance with IO) is modified by deleting the following text: “, and, except as set forth in Section VI(c), will create a reasonably balanced delivery schedule.” Advertiser and Agency acknowledge that, given the nature of Media Company’s business, and the nature of programmatic media, delivery of impressions may fluctuate throughout the course of a campaign.
- References to “two (2) business days” or to a “two (2) business day period” in Section II.c. (Technical Specifications) shall be replaced with “five (5) business days” and “five (5) business day period” respectively.
- Section II.d. (Editorial Adjacencies) is deleted in its entirety and replaced with the following: “d. Editorial Adjacencies and Competitive Separation. Advertiser and Agency understand and acknowledge that Media Company does not own or operate the Sites upon which Ads will appear, and Media Company does not create, control, or approve, the content on such Sites, including the content against which Ads may appear. Accordingly, unless otherwise agreed to in an IO, standard editorial adjacency provisions do not apply. Unless otherwise agreed to in an IO competitive separation requirements shall not apply.”
4. Amendments to Section III. (Payment and Payment Liability)
- Section III. (Payment and Payment Liability) is deleted and replaced entirely with the following:
III. Payment and Payment Liability
a. Invoices. Unless otherwise set forth in the IO (e.g., where an IO indicates funds must be prepaid), the invoices will be sent by Media Company at the beginning of each month for services and Deliverables provided the preceding month. Media Company will use commercially reasonable efforts to ensure that all invoices are sent within ninety (90) days of the provision of services and Deliverables. Invoices will be based on Media Company’s measurement of delivery. Invoices will be sent to Agency’s billing address as set forth on the IO. Invoices may be sent via email where the IO includes an email address where such invoices may be delivered. In the event an IO indicates funds must be prepaid, Media Company will invoice Agency prior to the campaign start date, and all funds must be paid in full prior to the start of the campaign Media Company is not required start the campaign or to begin delivery prior to receiving full payment of such invoice, and Media Company shall have no liability for any delay in the campaign start date or any under delivery that results from a delay in payment of such invoice by Agency.
b. Payment Date. Agency shall make payment 7 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO. In the event Agency fails to pay any undisputed sum when due, then, in addition to all other remedies available under this Agreement or at law, all such payments shall bear interest calculated on a daily basis and compounded monthly at a rate which is the lesser of: (1) 3% per month and (2) the highest rate permissible under applicable law, starting on the date such payment is due until but excluding the date the overdue amount and accrued interest is paid. In the event such failure to pay continues for 5 days after written notice thereof, Agency and Advertiser shall be deemed to be in material breach of this Agreement and Media Company may, at its election and in addition to all other remedies available under this Agreement or at law: (1) immediately suspend any ongoing campaign and its performance under any applicable IO, (2) immediately reject or cancel any IO submitted by Advertiser or Agency, and/or (3) immediately terminate this Agreement and any IO. In the event Media Company suspends, cancels, or terminates the campaign or any IO pursuant to the foregoing provision, Media Company shall have no liability to Agency or Advertiser in connection with such cancellation, suspension, or termination, and Media Company shall have no further liability or responsibility to Advertiser and Agency in connection with any canceled or terminated IO. Agency and Advertiser shall reimburse Media Company for all reasonable costs incurred in collecting any overdue payments and related interest, including, without limitation, attorneys’ fees, legal costs, court costs, and collection agency fees.
c. Payment Liability. Agency and Advertiser shall be jointly and severally liable for all payments. For purposes of clarity, Media Company may hold Agency liable for all payments due in connection with an IO regardless of whether Agency has received and cleared funds from its Advertiser.
5. Section IV (Reporting)
- Section IV.a. (Confirmation of Campaign Initiation) is modified by adding the following at the beginning: “Upon Agency’s request” and by deleting the following text: “, within two (2) business days of the start date of the IO,”
- The text of Section IV.b. (Media Company Reporting) is deleted in its entirety and replaced with the following: “Media company will make reporting available to Advertiser during regularly scheduled intervals throughout the campaign. Such reports may be provided by Media Company or its designated ad server, and, unless otherwise agreed in writing, will include the number of impressions delivered, spend, and average CPM. Notwithstanding anything else set forth herein or in any IO, the calculation of all fees will be based on Media Company reported numbers.”
- The text of Section IV.c. (Makegoods for Reporting Failure) is deleted in its entirety and replaced with the following: “Reserved.”
6. Amendments to Section V. (Cancellation and Termination)
- Section V.a. (Without Cause) is deleted in its entirety and replaced with the following: “Section V.a. (Without Cause). Unless otherwise provided in an IO, Advertiser may cancel the entire IO, or any portion thereof, by providing 72 hours advanced written notice to Media Company. Advertiser will remain responsible for any fees incurred prior to the effective date of such termination.”
- The following is added at the end of Section V.b. (For Cause): “For purposes of clarity, failure to make timely payment to Media Company in accordance with the provisions set forth in Section III of these Terms shall be considered a material breach of these Terms subject to the additional remedies set forth therein. Notwithstanding the foregoing provision or anything else in these Terms, in the event Advertiser (i) files or otherwise becomes subject to a receivership, insolvency proceeding, bankruptcy proceeding or other proceeding for the adjustment and restructuring of debts or liquidation of assets; (ii) makes an assignment for the benefit of creditors; or (iii) becomes insolvent, Media Company may terminate the IO immediately upon notice to Agency.”
7. Amendments to Section VI (Makegoods) and Section VII (Bonus Impressions)
- The text of Sections VI (Makegoods) and Section VII (Bonus Impressions) are deleted in their entirety, and each is replaced with the following: “Reserved.” Advertiser and Agency acknowledge and agree that, unless otherwise explicitly 4888-8043-7863.5 provided in an IO, Media Company does not guarantee any specific amount of Deliverables, including any specific amount of delivered impressions. Any budget amount stated in an IO is merely an estimate and not a guarantee that the entire budget will be spent in full during the course of a campaign. Advertiser and Agency acknowledge and agree that, given the nature of Media Company’s business, and the nature of programmatic media, delivery of impressions may fluctuate throughout the course of a campaign and guaranteed delivery, even delivery, and makegoods are not available, and bonus impressions are not applicable.
8. Amendments to Section IX (Ad Materials)
- The second sentence of Section IX.a. (Submission) is deleted in its entirety.
- The last clause of the second sentence of Section IX.c. (Compliance) starting with “provided that if Media Company has reviewed” is deleted in its entirety, and the following is added at the end of Section IX.c.: “For purposes of clarity and not by way of limitation, material that may bring ‘disparagement, ridicule, or scorn’ upon Media Company or its Affiliates pursuant to the foregoing sentence may include, but is not limited to, material depicting or containing: pornography, nudity, or sexual activity; violence; harassment or bullying; self-harm and other dangerous acts; promotion of illegal activities; weapons; drugs; or gambling activities. Further, Advertiser and Agency acknowledge and agree that Ads and Advertising Materials may be rejected or removed by Media Company’s Third Party inventory partners and owners and operators of Network Properties in the event such Ads or Advertising Materials violate the policies of any such Third Party inventory partners or the owners and operators of such Network Properties”
- The following is added to Section IX.d. (Damaged Creative): “If Advertiser or Agency fails to provide Media Company with Advertising Materials to replace such damaged, non-compliant or otherwise unacceptable Advertising Materials prior to the scheduled start of the media flight, Advertising Materials will be deemed ‘late’ pursuant to subsection IX.b.”
9. Amendments to Section X (Indemnification)
- Section X.e. is added: “e. Government and Self-Regulatory Actions; Subpoenas. For purposes of clarity, the term ‘Third Party,’ as used in this Section X, shall include any government regulatory entity or industry self-regulatory council or commission; and the term ‘Claim,’ as used in this Section X shall be interpreted to include any investigation or enforcement action brought by such parties. The term ‘Claim’ shall also include any subpoenas issued to a party in connection with any IO.”
10. Amendment to Section XII (Non-Disclosure, Data Usage, and Ownership, Privacy and Laws)
- The definition of Site Data set forth in Section XII.c.iv. is amended by adding the following at the end: “Site Data includes preexisting data owned or licensed by Media Company’s Third Party inventory partners, data partners, or the owners and operators of any Network Properties as well as any information that identifies such party’s site, brand, content, context, or users as such.”
- Section XII.d.ii. is deleted in its entirety and replaced with the following: “Reserved.”
- In Section XII.d.iii. the text “Advertiser, Agency, and Media Company” is deleted in its entirety and replaced with the following: “Advertiser and Agency.”
- The second sentence of Section XII.h. beginning with the text: “Notwithstanding the foregoing,” is deleted in its entirety.
11. Amendment to Section XIII (Third Party Ad Serving and Tracking)
- All text in Section XIII.a. following the phrase “Media Company will track delivery through its ad server” is deleted.
- Section XIII.b. is replaced in its entirety with the following: “The controlling measurement used for measuring delivery will be Media Company’s designated ad server and Media Company will provide Advertiser access to such reports.”
- The text of each Section XIII.c. through XIII.g. is deleted in its entirety, and each is replaced with the following: “Reserved.”
12. Amendment to Section XIV (Miscellaneous)
- Section XIV.d. (Conflicts; Governing Law; Amendment) is modified to replace the first placeholder with “New York, without reference to its choice of law rules” and the second placeholder with “the state and federal courts located in Manhattan, New York.”
- The second sentence of Section XIV.e. (Notice) is deleted and replaced with the following: “All notices to Agency and Advertiser will be sent to the contact as noted on the IO and all notices to Media Company will be sent to email@example.com.” And the third sentence of Section XIV.e (Notice) is deleted in its entirety.
- The first sentence of Section XIV.f. (Survival) is replaced with the following: “Those Sections of these Terms which by their nature are intended to survive termination or expiration of these Terms shall survive termination or expiration of these Terms.”
13. Additional Provisions
- The following Section XV. is added:
XV.a. Advertiser and Agency understand and acknowledge that some services provided by Media Company rely on external services provided by Third Parties, including certain Third Party inventory partners and data providers, and owners and operators of Network Properties. By using Media Company’s services, Advertiser and Agency agree to comply with any terms and conditions and/or policies promulgated by such Third Parties. Advertiser and Agency acknowledge and agree that Media Company makes no representations or warranties in connection with such Third Party providers or their products and services.
XV.b. Notwithstanding anything else set forth in this Agreement, Advertiser and Agency shall use any reporting or other data generated by Advertiser’s use of the Media Company services or the transactions executed hereunder solely for Advertiser’s internal purposes in connection with media buying and planning. Neither Advertiser or Agency shall merge or combine any such data with any directly identifiable information or otherwise re-identify or attempt to reidentify any individual.
XV.c. Advertiser and Agency acknowledge and agree that Media Company may use The Trade Desk, Inc. to monitor interaction with Advertiser’s ads and websites, and The Trade Desk may gather information (include unique online identifiers) about consumers from cookies and/or other automated technologies (not to include directly identifying information such as a consumer’s name). Consumers may opt out from Trade Desk’s collection of such information by clicking on the following link: http://www.adsrvr.org. In the event Advertiser implements any such tracking or monitoring technologies on its websites, mobile applications, or other owned and operated properties, Advertiser shall be fully responsible for ensuring that any legally required notice has been provided to 4888-8043-7863.5 consumers regarding the use of such technology, any legally required consents have been obtained from such consumers, and any legally required opt out mechanisms have been implemented. Advertiser shall not import any directly identifying information (e.g., name, email address, physical address) through such technologies or distribute any viruses or malware through its Ads or such technologies. Notwithstanding anything else set forth in this Agreement, Advertiser and Agency may not create targeting profiles or segments on the basis of the publisher sites that a user has visited, the content on the publisher’s page or site, or the general interest area(s) covered by the publisher (e.g., Advertiser may not create an “ESPN Audience” segment based on any information obtained during a prior campaign on ESPN properties).
XV.d. Advertiser will comply with The Trade Desk Ads Standards, located on the Trade Desk Wiki (or successor URL) and with other Third Party ad standards, security requirements, or guidelines provided to Advertiser. Notwithstanding anything else set forth in this Agreement, Advertiser shall not use any persistent identifier to target users of any inventory (websites, apps, or other online properties) directed or targeted at users under the age of 13 or that Advertiser knows or should know are used by a substantial or disproportionately high ratio of children under the age of 13.
XV.e. Advertiser and Agency shall not place any Ads related to gambling or run any advertising campaigns related to gambling unless otherwise explicitly agreed to in an IO.
XV.g. Advertiser and Agency shall use any data regarding TV inventory provided through the Media Company’s platform or services, whether pre-campaign or post-campaign (“TV Data”) solely for purposes of planning and administering campaigns, including post-campaign analysis. Advertiser and Agency may not (i) disclose, display, copy, transmit, reproduce, or duplicate the TV Data for any purposes except as expressly stated in this section; (ii) make any use whatsoever, including use of information derived therefrom, except as may be permitted directly through Media Company’s platform and services, or as otherwise permitted in this section; or (iii) rent, sell, sublicense, transfer, grant any rights in, modify, reverse engineer or create derivative works of (including analytics based on, except as described in this Section) the TV Data.