(Revised and updated October 2022)
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 M below. To the extent there exist any inconsistencies between these Terms and the IAB Terms, these Terms shall control with respect to the Agreement. Capitalized terms that are not otherwise defined herein shall have the meaning ascribed to them in the IAB Terms.
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 agrees to accept and pay for, the Services. Advertiser 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 Media Company Properties (and other trusted media properties brokered by Media Company) and (ii), if applicable, loyalty awards to its end users in connection with the Services.
D. Advertising Materials. Notwithstanding any creative support Media Company may offer or provide as part of the Services, Advertiser has final control over the form, content and subject matter of any Ad or Advertising Materials, including the disclosure of all material terms and conditions to end-users. Advertiser is solely responsible for ensuring that any Ads or Advertising Materials: (i) comply with all applicable laws, including advertising and consumer protection laws, as well as Media Company Policies; (ii) are clear, complete, accurate and not misleading (including by virtue of any material omissions); (iii) prominently display all material terms and conditions in close proximity thereto, whenever Ads or Advertising Materials are not displayed directly on Media Company Properties or Network Properties (such as when Media Company refers traffic to Advertiser, or indirectly displays Advertising Materials on Media Company Properties via nested or embedded technology); and (iv) are promptly updated, with all such updates promptly communicated to Media Company in writing, whenever relevant terms or conditions change.
E. Tracking. For purposes of these Terms, “Conversion” means any discrete end-user action (e.g., impression, click, download, or purchase) or event, or series thereof, that constitutes a Deliverable under the IO entitling Media Company to payment. Where Advertiser controls Conversion tracking, it will: (i) promptly notify Media Company of each Conversion (or, if notifications are delayed by design, such as when Advertiser transmits in daily or weekly batches, Advertiser will accurately disclose the wait time in terms and conditions for the Ad), and (ii) assist Media Company in providing timely customer support to any end-user who attempts Conversion, including, at a minimum, investigating and making commercially reasonable efforts to resolve any tracking issues. Should the parties agree to alter Deliverables or Advertising Materials for any published Ad, and during the time before said Advertising Materials are updated, an end-user acts in reliance thereon, that end-user will be eligible for Conversion under the Ad's then-published terms.
F. Reporting and Payment. Media Company will use commercially reasonable efforts to provide reporting to Advertiser in a manner that is mutually agreed upon by the parties. Advertiser agrees to strictly abide by the payment terms of each IO executed by and between the parties as invoiced by Prodege. Advertiser will pay Media Company for all Valid Conversions. A "Valid Conversion" means a Conversion that (x) is delivered materially in accordance with the applicable IO, (y) is not fraudulent (as determined by Media Company), and (z) is not canceled or charged back.
G. Invoice Dispute Provisions. In the event that Advertiser 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 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's position, it shall promptly refund or credit Advertiser with the amount of the requested refund/adjustment. If Prodege disputes Advertiser'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 does not follow the foregoing procedures for disputing any invoice, such invoice payment shall be deemed final and no subsequent refund/adjustment claim shall be permitted.
H. Data Ownership. The data associated with all Valid Conversions ("Valid Conversion Data") shall be deemed the property and Confidential Information of Advertiser, 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 Conversion Data will not be used by Advertiser for Repurposing without Media Company's prior written consent. Data associated with Conversions that are not deemed Valid Conversions ("Invalid Conversion Data") shall be deemed solely the property and Confidential Information of Media Company and may not be used by Advertiser 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, or for Repurposing generally. Without limiting the generality of the privacy and confidentiality obligations set forth in the IAB Terms, Advertiser agrees to immediately notify Media Company in writing if it learns of any actual or suspected unauthorized access to, or use or disclosure of, any Valid Conversion Data and/or Invalid Conversion Data, and Advertiser will provide reasonable assistance to Media Company in the investigation and prosecution of any such unauthorized access, use or disclosure.
I. Relationship. The relationship of Media Company and Advertiser shall be that of independent contractors and nothing contained herein shall be construed as creating any partnership, agency, 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 for the sole purpose of performing the Services set forth in this IO.
J. 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.
K. Non-Solicitation. During the term of this Agreement and for six (6) months thereafter (the "Non-Solicitation Period"), Advertiser 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 an "Account Servicer"). Notwithstanding the foregoing, Advertiser may engage an Account Servicer if the Account Servicer independently responded to Advertiser's generally publicized advertisement for employment (or similar engagement) without direction from Advertiser, its employees nor any third-party acting on its behalf.
L. 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 $100,000 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).
M. 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 I(c) (Revisions) is amended by adding the following to the end of the paragraph: “Notwithstanding any provision of these Terms (including Section XIV(c)) to the contrary, the parties may revise any IO Details specified in Section I(a), and the content, subject matter, or form of any relevant Ad or Advertising Materials, in the same manner.”
- 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 a new sub-section (d.) as follows: "d. Notwithstanding anything to the contrary, in the event of any cancellation or termination of any IO, Advertiser or 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 IX(c) (Compliance) is amended by adding the following to the end of the first sentence: “; and Media Company may do so at any time, permanently or temporarily, with or without notice to Advertiser/Agency, and without liability.”
- Section IX(e) is amended by adding the following to the beginning of the first sentence: “Except as otherwise specified in these Terms or an IO, ”.
- Section X(a) (Indemnification–By Media Company) is amended by revising subsection (1) of the second sentence to read in its entirety: “(1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials or information provided or approved by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or”.
- Section X(b) (Indemnification–By Advertiser) is amended by revising subsection (iii) to read in its entirety: “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, including as modified under Section I(c).”
- 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 OR GUARANTEE ACTIONS, CONVERSION RATES, OR 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. Advertiser/Agency acknowledges and agrees that Media Company is not affiliated with nor responsible for any third-party products or services (including Advertiser’s products or services) that may be displayed, distributed or otherwise promoted under any IO, including in any Advertising Materials. Media Company neither represents nor endorses the quality, accuracy, reliability, integrity or legality of Advertiser’s or any third-party’s products or services, nor the truth or accuracy of the description of Advertiser’s products or services, nor any third-party Advertising Material, including Ads, offers, links, content, advice, opinions, offers, proposals, statements, data, or other information that is provided or controlled by third parties and displayed, distributed, or otherwise used on or in connection with the Services or any IO.”
- Section XII(g) (Compliance with Law) is amended by adding to the end of the paragraph: “, including, without limitation, any and all statutes, laws, regulations, and rules of any applicable country, state, county, city, municipality, or other jurisdiction pertaining to advertising, consumer protection, privacy, or data protection, including without limitation the EU’s General Data Protection Regulation (EU) 2016/679 and the California Consumer Privacy Act (“Applicable Laws”). Without limiting the generality of the foregoing, the Parties will work together in good faith to timely put in place any additional contract terms, including but not limited to amendments to these Terms, that are or may become required under Applicable Laws for Media Company to perform the Services contemplated under any IO.”
- 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 10/2022