Prodege Insertion Order Terms and Conditions
A. Preamble. These Terms and Conditions set forth the agreement with respect to the Services described in each IO executed by the parties hereto. These Terms and Conditions, along with all IOs and exhibits executed between the parties, constitute one binding agreement (collectively, the “Agreement") by and between Prodege, LLC, a California limited liability company ("Media Company") and the Advertiser/Agency referenced in connection with the services described in each IO (the "Services"). This Agreement further hereby incorporates by reference Version 3.0 of the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (the "IAB Terms"), as modified and amended in Section K below. Capitalized terms that are not otherwise defined herein shall have the meaning ascribed to them in the IAB Terms. Media Company may modify these Terms and Conditions at any time with respect to future IOs. Accordingly, Advertiser/Agency should regularly review these Terms and Conditions for any such changes. Advertiser/Agency's ordering of new Services following any such modification to these Terms and Conditions shall constitute its acceptance thereof.
B. Reference to Advertisers. In any instance where Advertiser/Agency is an Agency or advertising network entering into this Agreement on behalf of its client, any reference to "Advertiser" shall refer jointly to Agency or the advertising network and the applicable underlying client.
C. Media Company Services. Media Company agrees to provide, and Advertiser/Agency agrees to accept and pay for, the Services. Advertiser/Agency grants Media Company and its affiliates and sub-publishers ("Affiliates") all rights necessary to undertake the marketing campaigns referenced in each applicable IO. Such rights include, without limitation, the right to distribute (i) Advertising Materials on pre-approved media (Media Company Properties shall be deemed pre-approved) and (ii), if applicable, loyalty awards to its end users in connection with the Services.
D. Reporting and Payment. Media Company will use commercially reasonable efforts to provide reporting to Advertiser/Agency in a manner that is mutually agreed upon by the parties. Advertiser/Agency agrees to strictly abide by the payment terms of each IO executed by and between the parties as invoiced by Prodege. In the event that Advertiser/Agency wishes to dispute the amount of any invoice for any reason, it shall first be obligated to pay the full amount of such invoice (without prejudice) pending the resolution of such dispute. In order to resolve such dispute, Advertiser/Agency shall thereafter notify Prodege of such dispute in writing and provide Prodege with reasonably detailed documentary evidence supporting its position and the amount of its refund/adjustment claim within 45 days of the invoice date, for Prodege's good faith evaluation. If Prodege agrees with Advertiser/Agency's position, it shall promptly refund or credit Advertiser/Agency with the amount of the requested refund/adjustment. If Prodege disputes Advertiser/Agency's position, the parties shall engage in good faith discussions in an effort to resolve such dispute before either party initiates legal action. If Advertiser/Agency does not follow the forgoing procedures for disputing any invoice, such invoice payment shall be deemed final and no subsequent refund/adjustment claim shall be permitted.
E. Actions. Advertiser/Agency will pay Media Company for all actions specified in accordance with the applicable IO; provided, however, that Advertiser/Agency shall have no obligation to pay for any Action that (i) it rejects in good faith within five (5) days of its receipt thereof and (ii) both parties determine is not a Valid Action (as defined below). A "Valid Action" means an action taken by a natural person that (x) is not fraudulent (as determined by Media Company), cancelled or charged back; and (y) in the case of leads-based campaigns, the action submitted meets all of Advertiser/Agency's criteria as set forth in the applicable IO.
F. Data Ownership. The data associated with all actions that are accepted by Advertiser/Agency and paid to Media Company ("Valid Action Data") shall be deemed the property and Confidential Information of Advertiser/Agency, provided that (i) such data collected by Media Company from its end-users shall also be deemed the property and Confidential Information of Media Company, and (ii) Valid Action Data will not be used by Advertiser/Agency for Repurposing without Media Company' prior written consent. Data associated with actions that are deemed unacceptable or not paid for by Advertiser/Agency ("Invalid Action Data") shall be deemed solely the property and Confidential Information of Media Company and may not be used by Advertiser/Agency for any purpose without the express written consent of Media Company, including, without limitation, for the purpose of distribution to any third party, for reproduction in any media nor for Repurposing generally. Without limiting the generality of the confidential obligations set forth in the IAB Terms, Advertiser/Agency agrees to immediately notify Media Company in writing if it learns of any actual or suspected unauthorized use of or access to any Valid Action Data and/or Invalid Action Data, and Advertiser/Agency will provide reasonable assistance to Media Company in the investigation and prosecution of any such unauthorized use or disclosure.
G. Relationship. The relationship of Media Company and Advertiser/Agency shall be that of independent contractors and nothing contained herein shall be construed as creating any partnership, agency, employment, franchise, joint venture, or other similar relationship of any kind. Neither party has the authority to bind or incur any obligation on behalf of the other party; provided, however, Media Company acts as a limited agent of Advertiser/Agency's for the sole purpose of performing the Services set forth in this IO.
H. Scope. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all proposals, oral and written, all negotiations, conversations or discussions between or among the parties related to the subject matter hereof and all past dealing or industry custom. The express terms set forth in the IO shall be controlling and supersede any contrary terms agreed to by the parties. Without limiting the foregoing,no online or click-through terms, conditions, policies or documents offered by a party ("Online Terms & Conditions") shall be deemed to have modified this Agreement, notwithstanding the fact that a party may have affirmatively accepted such Online Terms & Conditions as a condition of accessing an online service.
I. Non-Solicitation. During the term of this Agreement and for six (6) months thereafter (the "Non-Solicitation Period"), Advertiser/Agency agrees that it will not solicit (for its own benefit nor for the benefit of any third-party) the services of any person who during the Non-Solicitation Period was employed or similarly engaged by Media Company (each a "Service Provider"). Notwithstanding the foregoing, Advertiser/Agency may engage a Service Provider if the Service Provider independently responded to Advertiser/Agency's generally publicized advertisement for employment (or similar engagement) without direction from Advertiser/Agency, its employees nor any third-party acting on its behalf.
J. Arbitration. Notwithstanding anything to the contrary, for any dispute or claim arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, where the amount being sought (exclusive of interest, costs, and attorneys' fees) is $75,000 or less, either party may submit such matter to be determined by binding arbitration in Los Angeles, California before a single arbitrator, administered by, and in accordance with, the then-applicable Commercial Arbitration Rules of the American Arbitration Association (AAA) or the then-applicable Streamlined Arbitration Rules & Procedures of JAMS. In any such arbitration, the arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees it reasonably incurs in connection with the arbitration. Judgment on the award may be entered in any court having jurisdiction, and either party may seek provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding any provision with respect to governing law, such arbitration shall be subject to and governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
K. Amended IAB Terms.The IAB Terms as between the parties are hereby modified/amended as follows:
- Section I(a) (IO Details) is amended by deleting sub-section (v) in its entirety.
- Section II(b) (Changes to Site) is amended by adding to the second sentence: "; provided, Agency has given Media Company (i) written notice of its intent to cancel the remainder of the affected placement and the specific grounds therefor; and (ii) a meaningful opportunity to rebut and/or cure the alleged deficiencies."
- Section V (Cancellation and Termination) is amended by adding new sub-section as follows: "d. Notwithstanding anything to the contrary, in the event of any cancellation or termination of any IO, Agency shall pay to Media Company all amounts owing for any placements completed by Media Company prior to the effective date of such cancellation or termination."
- Section VI(a) (Notification of Under-delivery) is amended by revising the first sentence to read in its entirety: "Media Company will monitor delivery of the Ads, and will use commercially reasonable efforts to notify Agency as soon as reasonably possible if Media Company believes that an under-delivery is likely."
- Section VIII(b) (Related to Payment) is amended by adding to the second sentence: ", including any amounts owing hereunder for any Services provided during any Force Majeure event."
- Section XI (Limitation of Liability) is amended by adding to the end of the paragraph: "THE SERVICES PROVIDED BY Media Company ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, Media Company MAKES NO WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Media Company DOES NOT WARRANT NOR GUARANTEE ACTIONS, CONVERSION RATES, NOR RESPONSE RATES. THE SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. Media Company MAKES NO GUARANTEES AND ACCEPTS NO RESULTING LIABILITY FOR FAILURE TO MEET SCHEDULED DELIVERY/FLIGHT DATES."
- Section XIV(d) (Conflicts; Governing Law; Amendment) is amended by adding California and Los Angeles County, respectively.
- Section XIV(e) (Notices) is amended by adding to the end of the paragraph: "Any notice or approval required hereunder must be given or obtained in writing as provided above."
IO-IAB Rev 2/17