MARKETPLACE BY ADTECH PUBLISHER TERMS AND CONDITIONS
These Marketplace by ADTECH Publisher Terms and Conditions (“Terms”), and any insertion order(s) entered into between the parties that reference these Terms (each an “IO”, and together with these Terms, the “Agreement”) between ADTECH US, Inc. and its affiliates (“ADTECH”), and the individual or entity entering into this Agreement (“Publisher”) shall govern Publisher’s use of Marketplace by ADTECH. In the event of any inconsistency between the Terms and an IO, the IO shall control. Capitalized terms not defined herein shall have the meanings assigned to them in the IO.
“Marketplace by ADTECH” or “Service” means ADTECH’s proprietary technology and platform for enabling publishers to optimize online advertising inventory and enabling Buyers to purchase such online advertising inventory.
“Bid” means a bid submitted by a Buyer through the Service to display a Creative in an available impression on online advertising inventory.
“Buyer” means an advertiser, agency or other demand-side provider who places Bids through, and/or otherwise purchases online advertising inventory from, the Service.
“Creative” means advertising materials of any type used under this Agreement.
“Cross-app Advertising” means delivering advertising based in whole or part on data collected through applications owned or operated by different parties on a device for the purpose of delivering advertising based on the preferences or interests inferred from such data.
“Impression” means an instance in which a Creative is served to, and received by, a Unique Visitor on a Publisher Website via the Service as measured by ADTECH, not including automated page refreshes.
“Network Tags” means scripts provided by ADTECH that are designed to be inserted into the code of the Publisher Pages, which scripts communicate with servers designated by ADTECH and request transmission from those servers of Creatives.
“Marks” means a party’s trademarks, service marks, logos and trade dress.
“Opt-Out Mechanism” means a mechanism that allows end users to exercise choice to disallow the use of data in connection with interest-based advertising.
“Precise Geolocation Data” means any information that identifies or is capable of determining with reasonable specificity the actual physical location of an end user or device (e.g., GPS level latitude/longitude coordinates, location-based Wi-Fi triangulation or cellular tower data).
“Publisher Page” means a web page on the Publisher Website.
“Publisher Website” means a website, application, or other media owned or operated by Publisher, or on which Publisher is legally authorized to act in the manner contemplated by this Agreement.
“Unique Click” means an instance in which a person viewing the Publisher Website, as identified by cookie or IP address, clicks on a Creative, as measured by ADTECH (provided however, that a click on a specific display Creative by a particular person shall only be counted as a Unique Click once every 1-hour period).
"Unique Visitor" means a human visitor to the Publisher Website as identified by ADTECH based on such visitor's IP address.
“User Interface” means an online tool provided by ADTECH through which Publisher may access Reports and other campaign management functions as may be available from time to time.
a) Network Tags. ADTECH requires placement of Network Tags on the Publisher Websites participating in the Service. Publisher shall use reasonable efforts to promptly place and enable the Network Tags. Publisher will have the ability to set certain criteria with respect to Bids and Creatives via options provided in the User Interface. Publisher shall use best practices to safeguard its User Interface credentials from loss, theft or misuse, and is solely responsible for all activity occurring under such login. Once the Network Tags are placed and enabled by Publisher, the Service may send requests for Bids from the Publisher Website(s) to Buyers. The Service may then accept Bids from Buyers in order to select the winning Creative and determine the price (“Market Price”) for displaying the Creative to a Unique Visitor according to methodology and factors determined by the Service, including but not limited to: (1) the highest price/bid, (2) the second highest price/bid, and (3) criteria set by Publisher through the User Interface (e.g., price floors). All delivery shall be subject to frequency capping, volume capping and targeting parameters established by ADTECH and/or Buyers. Unused impressions that are not filled with Creatives may be redirected to Publisher via a redirect link provided or approved by Publisher, at ADTECH’s reasonable discretion.
b) License Grant. Subject to the terms and conditions of this Agreement, ADTECH grants to Publisher a limited, non-transferable, non-exclusive, non-sublicensable right and license to use the Network Tags and User Interface, and to display Creatives on the Publisher Websites, solely for the purpose of performance of this Agreement and solely during the Term.
c) Restrictions; Prohibited Activities. Publisher shall not do any of the following:
i. Categorize the content of the Publisher Pages in a misleading or inaccurate manner (e.g., a page consisting primarily of autos-related content must be accurately categorized as an autos page).
ii. Place the Network Tags on any Publisher Websites that have not been declared in the User Interface in advance of such placement, or that have not otherwise been approved in advance and in writing by ADTECH.
iii. Alter, reverse engineer, decompile, disassemble, sell, rent, lease, sublicense, transfer, or otherwise make available the Network Tags or Creatives or any copies thereof to any third party, or create derivative works therefrom.
iv. Copy the Network Tags or Creatives, except for performance of this Agreement or for backup, archival and disaster recovery purposes.
v. Place Network Tags on blank web pages or on web pages with no content, or in a fashion that may be deceptive to the visitor.
vi. Induce persons to click on Creatives based on incentives (e.g., rewards programs).
vii. Use unsolicited email to promote Creatives.
viii. Use autospawning browsers, or automatic redirecting of visitors, blind text links, misleading links, forced clicks (i.e., requiring a visitor to click on a Creative because his or her browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks.
ix. Use any method that may lead to falsely generated or an artificially high number of impressions.
Publisher recognizes that a breach of any of these conditions could result in immediate, extraordinary and irreparable damage to ADTECH and its relationships with its advertising clients, and that damages may be difficult to measure. Upon a determination by ADTECH, in its sole discretion, that Publisher has violated any of the foregoing conditions, Publisher agrees that ADTECH may, in addition to other legal remedies, assess liquidated damages of up to $1,000.00 per occurrence of each such violation, and that such liquidated damages are reasonable. Publisher shall be responsible for all action or inaction of third-party owners or operators of Publisher Website(s).
d) Prohibited Content. ADTECH does not accept any Publisher Website that contains the following content: (i) any content that contains or promotes concepts that are hateful or disparaging towards any race, religion, gender, sexual orientation or nationality; (ii) any content that promotes firearms, bombs and other weapons or how-to guides for any of the above; (iii) any content that contains or promotes illegal activities, including, but not limited to hacking, phreaking and online gambling; (iv) any content that contains or promotes pornography or graphic sexual depictions; (v) any content that contains, promotes or links to indecent, or obscene subject matter; or (vi) any content that facilitates or promotes illegal file-sharing (MP3s, copyright protected video, or the equivalent) (collectively referred to as the “Prohibited Content”). Publisher represents and warrants that during Term none of the Publisher Websites on which it places Creatives shall contain or promote Prohibited Content. ADTECH reserves the right to reject or block Creative from being displayed on any Publisher Page or Publisher Website at any time at its sole discretion.
e) Ownership Rights. Except for the limited license rights expressly granted to Publisher in this Agreement, ADTECH retains all right, title and interest in and to the Service, the User Interface, the Network Tags, the Creatives, and the technology utilized by ADTECH to operate the each of the foregoing, including but not limited to all patent, trademark, copyright, trade secret and all other intellectual property rights therein.
f) Publisher Responsibilities. Publisher is solely responsible, at its own expense, for procuring, maintaining and operating all hardware, software, networks, systems and third-party services (e.g., Internet access) necessary to (i) operate the Publisher Websites, (ii) access and use the Network Tags, the User Interface and the Service, and (iii) display the Creatives.
a) General. For each calendar month, Publisher will be paid in accordance with the payment terms set forth below and in the applicable IO. “Publisher Revenue” means the sum of the Market Prices for Impressions on the Publisher Websites. “Publisher Fee” means that percentage set forth in the IO, which percentage is deducted and retained by ADTECH from the Publisher Revenue. Publisher may be paid at the account level (i.e., if Publisher has multiple accounts, each account may be evaluated independently). No checks will be issued for any amounts less than $25 U.S.D. All un-issued earnings will roll over to the next pay period in which the amounts due exceed $25 U.S.D. Any dispute regarding a payment hereunder must be submitted to ADTECH in writing within sixty (60) days of such payment or it shall be deemed waived. To ensure timely payment, Publisher must notify ADTECH of any changes to its account information, including change of address, phone or email address. Publisher agrees to hold ADTECH liable for revenue payments solely to the extent that proceeds have cleared from a Buyer to ADTECH.
b) Withholding Payment. ADTECH reserves the right to withhold payment from Publisher if Publisher has engaged in activity that is either prohibited hereunder or is outside the scope of that which is permitted under this Agreement. In addition, with respect to Display Creatives, in no event may more than five percent (5%) of Unique Visitors for any payout calculation come from one IP address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation.
c) Taxes. By participating in the Service, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold ADTECH harmless from any such taxes. ADTECH shall provide Publisher with appropriate tax information, including earnings on Form 1099 as required by applicable law. If Publisher resides in the United States, then Publisher agrees to provide its Social Security number or Federal Employee Identification Number and any other reasonable information to ADTECH for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If Publisher resides outside of the United States, then Publisher may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. ADTECH may withhold payment from Publisher in the event that Publisher does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in ADTECH’s sole discretion.
- Counting. ADTECH shall have the responsibility in its sole and reasonable discretion for calculation of statistics and payments, including, but not limited to, Impressions, Bids, Unique Visitors and revenue generated on or through the Publisher Websites, as applicable. Publisher acknowledges that in some cases, ADTECH will need to make adjustments to statistics reported in the User Interface (the “Reports”) due to specific contractual provisions (e.g., bonuses), Invalid Clicks, statistical errors, or third party tracking provided by Buyers.
Use of Data and Privacy.
c) Opt-Out Mechanism. On desktop and mobile websites, the Opt-Out Mechanism will be a link to at least one of the SRP opt-out pages, which are currently located at http://www.networkadvertising.org/choices, http://www.aboutads.info and http://www.youronlinechoices.eu. On mobile applications, the Opt-Out Mechanism will be a description of how an end user can access a privacy device setting (e.g., Apple iOS Limit Ad Tracking).
e) COPPA. ADTECH is in compliance with Children’s Online Privacy Protection Act of 1998 (“COPPA”) and amendments thereto. Publisher represents and warrants that it shall: (i) designate to ADTECH all Publisher Websites as having children’s or non-children’s content; (ii) designate to ADTECH if any Publisher Websites knowingly collect any personal information as defined by COPPA from children under the age of thirteen; and (ii) promptly notify ADTECH in the event that either its Publisher Websites become covered by COPPA or if Publisher’s policy on data collection, use or disclosure from children under the age of thirteen changes.
f) Additional European Union End User Obligations. For end users in the European Union, Publisher shall ensure that Publisher Websites use commercially reasonable efforts to: (i) disclose clearly, and obtain consent to, any data collection, sharing and usage that takes place on any Publisher Websites or other property as a consequence of Publisher’s use of ADTECH products; and (ii) ensure that end users are provided with clear and comprehensive information about, and consent to, the storing and accessing of cookies or other information on the end users’ devices where such activity occurs in connection with a product to which this Agreement applies.
- Termination; Suspension; Survival. Either party may terminate the Agreement for any reason or no reason at any time by providing sixty (60) days prior written notice to the other party. Either party may also terminate this Agreement at any time in the event of a material breach by the other party. In addition, either party may terminate this Agreement immediately following written notice to the other party if the other party (a) ceases to do business in the normal course, (b) becomes or is declared insolvent or bankrupt, (c) is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days, or (d) makes an assignment for the benefit of creditors. ADTECH may immediately suspend Publisher’s use of the Service if Publisher uses the Service in a manner that ADTECH reasonably believes is harmful to ADTECH, its Affiliates, the Service or Buyers. Upon termination, any licenses granted by ADTECH hereunder shall immediately terminate and Publisher must remove all Network Tags from the Publisher Websites and cease delivery of any and all Creatives. In the case of termination, ADTECH will pay Publisher all uncontested amounts due during the next billing cycle. The following Sections of the Agreement, and those which by their nature are ongoing obligations, shall survive any expiration or termination of this Agreement: 4, 6, 7, 8, 9, 11(b) and 12 through 19.
- Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES, NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF CLIENTELE, LOSS OF USE, OR LOSS OR CORRUPTION OF DATA, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF THE PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE PARTIES’ INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY EITHER PARTY DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
a) Publisher. Publisher hereby agrees to defend, settle and pay damages on behalf of ADTECH and its officers, directors, agents, affiliates and employees associated with any and all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of or related to (i) any material breach by Publisher of any term, condition, representation or warranty under this Agreement; (ii) a contaminated file, virus, worm, or Trojan horse originating from Publisher’s Website (other than through a Creative supplied by ADTECH, unless such Creative was modified by Publisher without the express written consent of ADTECH); (iii) content on the Publisher Websites; or (iv) any violation of any intellectual property right or any other third party right, except for Creatives supplied by ADTECH, unless such Creatives were modified by Publisher without the express written consent of ADTECH.
b) ADTECH. ADTECH hereby agrees to defend, settle and pay damages on behalf of Publisher and its officers, directors, agents, affiliates and employees associated with any and all Losses that may at any time be incurred by any of them by reason of any claims, suits or proceedings (i) arising out of a material breach by ADTECH of any term, condition, representation or warranty under this Agreement; (ii) relating to a contaminated file, virus, worm, or Trojan horse originating from Creatives or Network Tags supplied by ADTECH; or (iii) related to any violation of any intellectual property right or other third party right in connection with Creatives supplied by ADTECH. Notwithstanding anything to the contrary in this Agreement, ADTECH shall not be obligated to indemnify Publisher or any other party to the extent a third party claim arises out of material modifications by Publisher to Creatives supplied by ADTECH without the express written consent of ADTECH.
c) Indemnification Procedures. Any claim for indemnification hereunder shall be subject to the following provisions: (i) the indemnifying party shall be given prompt written notice of the claim by the indemnified party, provided that any delay in providing notice shall not relieve the indemnifying party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying party was prejudiced by the delay; (ii) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the indemnified party may be made without the express written consent of the indemnified party; and (iii) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel at the indemnifying party’s cost and expense.
- Confidentiality. Each party (“Discloser”) acknowledges that during the performance of its obligations under this Agreement, it may disclose Confidential Information (as defined below) to the other party (“Recipient”).
a) Defined. "Confidential Information" means information regarding Discloser’s trade secrets, personnel, products, customers, financial data, marketing and pricing strategies, services, business plans, methods, computer systems architecture, network configurations, any information which is governed by any now-existing or future non-disclosure agreement between the parties, and any other information which is or should reasonably be understood by Recipient to be of a confidential or proprietary nature. Subject to those disclosure rights expressly set forth in the Agreement, the data collected by ADTECH with respect to Bids and Creatives on the Publisher Website, and the data contained in Reports, are Confidential Information of both parties.
b) Obligations. Recipient agrees that it will not disclose any Confidential Information to anyone except an employee, agent or advisor (collectively, “Representatives”) 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, and that it will not use Confidential Information for any purpose not permitted under this Agreement. Recipient will protect the Confidential Information in the same manner it protects its own confidential and proprietary information, but in no event shall such protection be less than a reasonable standard of care.
c) Exceptions. The foregoing obligations shall not apply to the extent Confidential Information must be disclosed by Recipient to comply with any requirement of law or order of a court or administrative body (provided that Recipient agrees to notify Discloser of the issuance of such order as soon as practicable, to reasonably cooperate with Discloser (at Discloser’s expense) in its efforts to convince the court or administrative body to restrict disclosure), and to disclose only the portion of such information that it is legally required to disclose. “Confidential Information” does not include information that: (i) is known to or in the possession of Recipient prior to its disclosure to Recipient hereunder, as evidenced by the Recipient's written records; (ii) is or becomes known or generally available to the public through no act or omission of Recipient or its Representatives in breach of this Agreement; (iii) is made available free of any legal restriction to Recipient by a third party; or (iv) is independently developed by Recipient without use of or reference to Confidential Information. Notwithstanding anything to the contrary in this Agreement, ADTECH may use and disclose any aggregate information (i.e. information that does not identify or relate specifically to Publisher), which it has collected or received in providing the Service, to the extent necessary to perform, enhance or improve its services and/or for ADTECH’s business and marketing purposes.
- Marks Usage. Publisher grants ADTECH and its Affiliates a non-exclusive, worldwide, royalty-free right and license to use, reproduce and display Publisher’s name, logo and the Publisher Website’s URL and IAB-based categorization, in connection with ADTECH’s sales materials and presentations.
- Disclosure. ADTECH requires certain disclosure rights to ensure that the Service performs properly between its publishers and Buyers. As such, Publisher authorizes ADTECH to disclose its membership in Marketplace by ADTECH and grants ADTECH the right to use, disclose and display: (a) Publisher’s name, logo, the Publisher Website’s URL and IAB-based categorization and any other bid request information submitted by Publisher to potential Buyers as needed to perform its obligations under this Agreement; and (b) Publisher’s name, the Publisher Website’s URL and IAB-based categorization, and bid request information and statistics to such Buyer for reporting purposes. Publisher agrees that Buyers acting as agents or demand-side providers for advertisers may disclose the information provided in subparagraph (b) to such advertisers. Publisher may not disclose its membership in the Service or use ADTECH’s Marks without the prior written consent of ADTECH. Neither Party will issue a press release concerning this Agreement or the business relationship contemplated herein without the other Party’s prior written consent.
- Entire Agreement; Assignment. This Agreement, as and if amended, shall constitute the entire and only agreement between the parties regarding Publisher’s participation in the Service, and shall supersede all previous communications, representations or Agreements, whether written or oral between the parties relating to the services provided hereunder. Publisher may not assign this Agreement without the prior written consent of ADTECH, which consent shall not be unreasonably withheld. Any assignment by Publisher without such consent shall be void ab initio. This Agreement shall inure to the benefit of all permitted successors and assigns.
- Representations and Warranties.
a) Both Parties. Each party represents and warrants to the other that (i) it has the full right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when agreed to.
b) Publisher. Publisher represents and warrants that (i) it is legally authorized to place the Network Tags on the Publisher Website(s) and to perform its obligations herein with respect to the Publisher Website; and (ii) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, statutes, ordinances, rules and regulations relevant to the performance of its obligations under this Agreement.
c) ADTECH. ADTECH represents and warrants that it (i) has all necessary licenses and clearances to use and permit Publisher to use the Network Tags and Creatives in the manner authorized by this Agreement, and (ii) will comply with all applicable laws, statutes, ordinances, rules and regulations relevant to the performance of its obligations under this Agreement.
- Modifications. This Agreement may not be modified by either party other than by a writing signed by an authorized representative of each party.
- Warranties; Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE AND ALL SUCH WARRANTIES ARE DISCLAIMED. PUBLISHER UNDERSTANDS AND ACKNOWLEDGES THAT THERE IS NO GUARANTEE THAT ANY MINIMUM LEVEL OF REVENUE WILL BE GENERATED AS A RESULT OF THIS AGREEMENT.
- Governing Law; Venue. This Agreement will be governed by and construed in accordance with the substantive laws of the State of New York without regard to its conflict of law principles. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state and federal courts situated in the city of New York, New York in connection with any action arising between the parties.
- Severability and Waiver; Captions. If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. The captions appearing in this Agreement are inserted only as a matter of convenience. This Agreement shall be interpreted as if drafted jointly by the parties.
- Force Majeure. Neither party will be liable for delay or default in the performance of its obligations under this Agreement 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, or labor disputes (“Force Majeure”).
- Notices. Notices may be provided via e-mail, fax, or other written means to the addresses set forth in the IO and will be effective immediately.
Last updated March 31, 2015