Contracts
Publisher Terms & Conditions
Effective March 1, 2023
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"Account" | means an account that You use to access the Program and/or Services; |
"Ads" | means any advertising content including any graphic and/or, audio, and/or audio-visual video advertising to be displayed on the Supply Inventory in different formats; |
“Ad Requests” | a request for the display of Ads; |
“Brand Features” | means any brand features or LoopMe attribution and may include for example the LoopMe name or logo shown in the ad unit (for example where necessary to show that LoopMe has served the ad and to satisfy transparency requirements) or the AdChoices icons (where required under applicable laws and guidelines) or any other such typical AdTech/Advertising industry standard brand features; |
"Buyer" | means any entity or person that buys Supply Inventory for the placement of Ads via LoopMe, including advertisers and any third-party platforms; |
"Confidential Information" | means all confidential information which is disclosed, or made available, directly or indirectly by one party to the other whether before, on or after the Effective Date, and whether orally, in writing, in electronic form or other media, which relates to (without limitation): (a) all software, technologies, programming, specifications, materials, guidelines and documentation relating to the Program, the Supply Inventory, including the existence and content of this Agreement and any information provided pursuant to the Agreement; (b) any statistics relating to the performance of the Program; (c) any other information designated in writing by either party as “Confidential” or would appear to a reasonable person to be confidential; and (d) all information derived from any of the above; |
"CPM" | means cost per thousand Impressions; |
"Credentials" | means the usernames, passwords, verification codes, and any other account access or authentication information associated with the Account; |
“Data Protection Legislation” | means any applicable laws, rules, regulations, policies and industry self-regulatory regimes in any relevant jurisdiction relating to the collection, use, processing, sharing and/or disclosure of data including: (i) EU Regulation 2016/679 ("GDPR"); (ii) GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the "UK GDPR"); (iii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR; (iv) in the United Kingdom (UK), the Data Protection Act 2018 ("DPA"); (v) any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC); (vi) in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003; and (vii) in the United States, the Children’s Online Privacy Protection Act (“COPPA”) in each case, as updated, amended or replaced from time to time; |
"Effective Date" | means the date that LoopMe activates Your Program as set out in the Publisher Order Form; |
"End User" | means any user who views, is able to view, or interacts with any advertisement in connection with Your Use of any of the Services; |
"Force Majeure Event" | has the meaning given to it in Section 14.6; |
“Fraudulent Activity” | means without limitation, any activities by You that authorize or encourage any third party to: (1) generate Impressions of or clicks on any Ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (2) mislead users to click on Ad(s); (3) in any way minimize or obstruct the display of any Ad(s); or edit, modify, filter or change the order of the information contained in any Advertisements; (4) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by LoopMe; (5) fraudulent passing off, including but not limited to spoofing the unique identifier of the ad spot which could be a URL or an app name; (6) providing Supply Inventory that is not approved by and/or as agreed with LoopMe, including but not limited to providing Supply Inventory which LoopMe in its own discretion believes is of lesser quality or otherwise unacceptable for any reason; or (7) reverse engineer, decompile or disassemble any software components of the advertising services provided by LoopMe; |
"Gross Negligence" | means any conduct, act or omission by a Party which, in addition to constituting negligence, is undertaken with reckless disregard to obvious risk; |
"Impression" | means a display of an Ad on a particular item of Supply Inventory; |
“Intellectual Property Rights” | means any intellectual property right including, without limitation, patents, rights to apply for patents, trademarks, trade names, service marks, domain names, copyrights and all applications and registration of such worldwide, schematics, database rights, industrial models, inventions, know-how, trade secrets, computer software programs, rights of publicity, moral rights, or any other such intangible proprietary information and/or third-party right; |
"LoopMe Materials" | means materials provided to You by LoopMe (including the Protocol, APIs or SDKs or Ads in relation to this Agreement); |
"LoopMe UI" | means the LoopMe user interface and web application allowing publishers and supply partners to manage their account on the LoopMe supply platforms, including LoopMe’s exchange/marketplace; |
"Precise Location Data" | means “Information that describes the precise geographic location of a device derived through any technology that is capable of determining with reasonable specificity the actual physical location of a person or device, such as GPS level latitude-longitude coordinates or location based Wi-Fi triangulation." as per Section I.G of the NAI Code (as updated from time to time); |
“Personal Data” | means “personal data” as defined in the applicable Data Protection Legislation; |
"Policies" | means LoopMe's policies as defined by Section 5.3 of these Publisher Terms and Conditions; |
"Program" or "Service" | means the program/services provided by LoopMe as described in Section 2 of these Publisher Terms and Conditions; |
"Prohibited Content" | means any part of Partner’s Content that is or may be considered in LoopMe’s sole discretion to be: hate-related, pornographic, libelous, abusive, offensive, sexually explicit, defamatory, obscene, slanderous or inflammatory; promoting violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; in violation of any applicable laws, statutes and regulations; infringing any copyright, database right or trade mark of any other person; likely to deceive any person or breach any legal duty owed to a third party, such as a contractual duty or a duty of confidence; promoting any illegal activity; contravening any of LoopMe's Policies; content that contains any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third-party rights or which are reasonably likely to subject LoopMe or its Buyers or business partners to negative publicity or any negative commercial impact; or any Content that is not approved by and/or agreed with LoopMe, including but not limited to Content which LoopMe in its own discretion believes is of lesser quality or otherwise unacceptable for any reason; |
"Protocol" | means the technical and implementation requirements provided by LoopMe from time to time, which may include integration or distribution of software, implementation of APIs or SDKs, complying with protocols and any other instructions contained in any documentation provided by LoopMe; |
"Supply Inventory" | means any and all digital advertising inventory, including (but not limited to) websites, applications, mobile websites, mobile applications, and any other digital properties for the display of Ads; |
"Third-Party Terms" | means any third-party terms and conditions applicable to the development and distribution of applications within Your Supply Inventory, including, without limitation, any third-party terms and conditions applicable to Your development and distribution of any part of Your Supply Inventory operating on the Android or iOS mobile operating systems or any other operating system supported by LoopMe now or in the future; |
"User Volunteered Data" | means any personally identifiable information of End Users collected by You or Your Advertiser via any Advertisements; |
"Wilful Misconduct" | means any deliberate act or omission which is contrary to or goes beyond the conduct to be expected of a Party, where such Party knows that or is reckless to the fact that such act or omission is contrary to or goes beyond the conduct to be expected of them. |
“You” or “Your” | means any entity identified on LoopMe's Publisher Order Form submitted by the same or affiliated persons, and/or any agency, network or other third party that You have granted access to Your account, all of whom will be bound by this Agreement; |
“Your Data” | means any data belonging to You or to third parties and used by You under license which may be stored and/or processed by LoopMe because of Your use or access of Program. |
- All licences granted by LoopMe under this Agreement shall immediately terminate;
- You shall uninstall or otherwise remove any means of access to the Program and Services provided under the Agreement including client software and any LoopMe SDK or API code supplied by LoopMe for that purpose; and
- You shall immediately return any and all LoopMe Confidential Information and LoopMe Material provided to You by LoopMe.
Effective March 21, 2022 to March 1, 2023
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- The Program allows You to monetize Your Supply Inventory by paying you a CPM price for the viewable impressions displayed by LoopMe for LoopMe buyers. If You are accepted as a publisher in the Program and where Ads are successfully displayed on the Supply Inventory, LoopMe will pay You such amount as reflected on and on the basis of the LoopMe dashboard which You will have access to and be provided with once you register with LoopMe. For the sake of clarity, Your Supply Inventory shall not include any apps that do not feature on the Google Play Store or the Apple App Store. LoopMe shall not be liable to pay for any traffic from apps that are not part of either the Play Store or App Store.
- You shall be responsible for raising a valid invoice within five (5) working days of the end of the applicable month of active promotions under Your account and emailing the invoice to finance@loopme.com. LoopMe will pay all undisputed Fees as stated on the invoice within 60 days from the receipt of such invoice. If there are any disputed amounts, both parties shall negotiate in good faith to resolve them. No payments will be issued for any amount less than $100 (USD) and any unpaid earnings will rollover and be charged on the next invoice (such amounts shall be noted on the face of the invoice for prior periods).
- The Parties agree that LoopMe’s obligation to pay amounts invoiced hereunder shall be subject to LoopMe’s receipt of funds from the applicable Buyer. LoopMe shall use reasonable endeavours to collect all monies due to LoopMe.
- From time to time LoopMe will run promotions for new customers to help them gain better value out of LoopMe and to encourage new publishers. You are responsible for the promo code being entered. LoopMe is under no obligation to enter it for you. If it is not entered, LoopMe will not pay You the amount the offer is valid for.
- Subject to invoice approval. LoopMe will pay invoices as noted above. Payments can be made in US dollars ($US), £ Sterling or Euros only. We shall send payment to you via wire transfer / BAC’s transfer. Our only liability is to send payment using the bank details provided by You and we shall have no liability for lost payments as a result of details being incorrectly entered by You. LoopMe shall not be liable for any bank charges attributable to the transfer, and shall be entitled to set off the same against the invoice as raised by You.
- LoopMe reserves the right to discontinue the Program, withhold payment at any time, and/or terminate any agreement with You, without liability to You, if LoopMe reasonably suspects that any of the following have occurred on Your Supply Inventory: (i) any form of Fraudulent Activity or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable laws or is reasonably likely to have a negative commercial impact on LoopMe, its advertisers or business partners. Without limitation to the foregoing, LoopMe may, at its sole discretion, credit back to advertisers and/or offset against future payments to You any payments which it subsequently determines accrued as a result of such Fraudulent activity or illegal activity. The term “Fraudulent Activity” for the purposes of this Agreement means, Fraudulent Activity includes without limitation, any activities by You that authorize or encourage any third party to: (1) generate impressions of or clicks on any Ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (2) mislead users to click on Ad(s); (3) in any way minimize or obstruct the display of any Ad(s); or edit, modify, filter or change the order of the information contained in any Advertisements; (4) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by LoopMe; (5) fraudulent passing off, including but not limited to spoofing the unique identifier of the ad spot which could be a url or an app name; (6) providing inventory that is not as agreed with LoopMe, including but not limited to providing inventory which is of lesser quality; or (7) reverse engineer, decompile or disassemble any software components of the advertising services provided by LoopMe.LoopMe may at its sole discretion seek liquidated damages not exceeding 50% of the amount payable to you under the Program for any breach of this Section II (f).
- Taxes: All payments are inclusive of taxes. Excluding any taxes on the income of a party, any taxes, including but not limited to sales, GST, VAT, excise, service tax, or such other transaction taxes, applicable in connection with this Agreement shall be borne and remitted by You to the relevant tax authorities. In case applicable laws require withholding of any amount on account of withholding taxes, LoopMe may withhold such amounts, unless You provides a certificate of exemption from such withholding taxes. Amounts payable to You shall not be grossed up on account of withholding taxes. Further LoopMe and You shall co-operate to enable each party to more accurately determine the respective tax liability and to minimize such liability, to the extent legally permissible.
- You will implement the Program in a manner that complies with the technical and implementation requirements provided by LoopMe from time to time, which may include integration or distribution of software, implementation of APIs or SDKs, complying with protocols and any other instructions contained in the LoopMe documentation (collectively, the “Protocol”). LoopMe will provide reasonable support and cooperation to You through the implementation process. All the materials provided to You by LoopMe (including the Protocol, APIs or SDKs or Ads in relation to this Agreement (LoopMe Materials) are the property of LoopMe and is sub-licensed to You for the performance of the respective obligations of the Parties under this Agreement. It is Your responsibility to ensure that You have appropriate protection for Your computers, software, data and applications including any systems that You use to access the Services or any LoopMe Materials and that LoopMe shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your access of the Services or use of the LoopMe Materials. You shall name LoopMe in the root directory of the applications or sites which You own/operate.
- Content. You are solely responsible for Your Inventory and all aspects of Your Supply Inventory (including content and subject matter, editorial, text, graphic, audiovisual, and other content and any other information) and/ or the activities of any third parties within Your Inventory.
- Your Account. You will protect any Program accounts You use to access any of the Services (each, an “Account”) and any usernames, passwords, verification codes, and any other account access or authentication information associated with the Account (“Credentials”) against any unauthorized access and use, and will take full responsibility for Your own, and any authorized or unauthorized third party, use of the Credentials or the Account. You will ensure that all information in Your Account, including, but not limited to, full name, contact address, and bank account information is up-to-date, complete and accurate. You acknowledge and agree that any remittances owed to You in connection with Your use of the Services may be delayed in the event that Your Account information is not up-to-date, complete and accurate. You may only grant access to Your Account to third parties approved by LoopMe solely to allow such third parties to access and manage Your Account on Your behalf; provided, however, that You shall (i) require that such third parties agree to be bound by the terms of this Agreement; (ii) ensure that such third parties comply fully with all provisions of this Agreement, and (iii) be fully responsible and liable for the acts and omissions of such third parties. Misrepresenting ownership and fraudulent claiming of applications in the LoopMe UI is strictly prohibited and may result in a permanent ban from the Services. You agree that to the extent You create a new Account, it must be pre-approved by LoopMe and registered to You under the same entity or name as your other Account(s); if not pre-approved or registered with the same entity or name, any right to any remittance is automatically waived by You.
- Policies. Use of the Program is subject to all applicable LoopMe ad specification requirements and policies, including without limitation, the LoopMe Program Policies, and the LoopMe Privacy Policy (collectively, the “Policies”), each as which may be updated from time to time by LoopMe.
- Privacy Policy. You must post and abide by a conspicuous and legally adequate privacy policy on each application and/or service of Your Inventory that must disclose the collection of Service Data by third parties such as LoopMe for personalized advertising purposes. You will comply with all applicable laws, rules, and regulations relating to the collection, use and sharing of information about any user who views, is able to view, or interacts with any advertisement in connection with Your Use of any of the Services (“End User(s)”). You must post, and if Your Inventory includes third party apps, then You will contractually require such third parties to post, such privacy policy on all applications in Your Inventory.
- Prohibited Actions. You will not, and will not allow any third party to: (a) use, directly or indirectly access, launch or activate the Program or LoopMe Materials through or from, or otherwise incorporate the Program in, any software application, website or other means other than Your designated sites; (b) transfer, sell, lease, syndicate, sublicense or lend the Program or LoopMe Materials; (c) directly or indirectly generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Program or any LoopMe Materials,; (f) remove, deface, obscure, or alter LoopMe’s proprietary rights notices affixed to or provided as a part of the Program, the LoopMe Protocol, or any other LoopMe Materials (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Program, LoopMe Materials or any other proprietary information related thereto; (h) use any feature or functionality of the Program, or include anything in Your Supply Inventory, that could be used to personally identify or personally track individual end users or any other persons; or (i) engage in any action or practice that reflects poorly on LoopMe or otherwise disparages or devalues LoopMe’s reputation or goodwill. LoopMe may terminate the Program, immediately upon written notice if You breach this Section.
- No Endorsement. You acknowledge and agree that LoopMe is not affiliated with or responsible for any third-party products/services You may choose to manage with the Program. LoopMe reserves the right, but will have no responsibility, to refuse to post or remove any Disclaimed Content, in whole or in part, that in LoopMe, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement. Disclaimed Content means, any part of Your Supply Inventory or Your Inventory that may be considered to contain any hate-related, pornographic, libelous, sexually explicit, violent or otherwise offensive content or contain any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third-party rights or which are reasonably likely to subject LoopMe or its Buyers or business partners to negative publicity. You represent and warrants to LoopMe that the Supply Inventory are legal to distribute, does not and shall not infringe on any third-party intellectual property right (including, without limitation, trademarks, patents, copyrights, rights of publicity, moral rights, or any other third-party right) and does not otherwise violate any applicable law or regulation, including any criminal law.
- Compliance. LoopMe may investigate any activity that may violate this Agreement. If You violate this Agreement or any Policies, LoopMe may in its sole discretion, with a prior notice of forty-eight (48) hours, terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. For any other violations, LoopMe will give you forty eight (48) hour notice period to cure such violations, and if such violation is not cured within the 48 hours of LoopMe sending such notice to You, LoopMe may terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. . LoopMe may refuse to process a request for display of Ads (“Ad Requests”) that are not sent in compliance with the requirements of this Agreement. Further LoopMe shall not be liable for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any LoopMe Materials (or any part thereof).
- Third-Party Terms. You (i) will comply with any third-party terms and conditions applicable to the development and distribution of applications within Your Inventory, including, without limitation, any third-party terms and conditions applicable to Your development and distribution of any part of Your Inventory operating on the Android or iOS mobile operating systems or any other operating system supported by LoopMe now or in the future (collectively, “Third-Party Terms”), and (ii) will not cause LoopMe to be in violation of any such Third-Party Terms.
- Third Party Services. LoopMe may use third party services providers to make certain services available to You, including to view performance metrics. Such third party services may change at any time, in LoopMe’s sole discretion. You are solely responsible for the use and security of any accounts made available by way of such third party services and You are solely responsible for any activities of any person authorized by You to have access to such accounts. LoopMe may also include third party software, as utilized by LoopMe from time to time, in the SDK to support certain features (e.g., viewability, fraud, geo-verification, and other measurement reporting) that may be made available through such third parties’ services, including to You, advertisers, demand side platforms, and other participants in the Program. By integrating the SDK without disabling or removing this third party software, You acknowledge and agree that such third party software provider’s privacy policy, terms of service and SDK license agreement, respectively, as may be updated by such third party from time to time, shall apply to Your integration and use of their software.
- Subject to the terms and conditions of this Agreement, with effect from the Effective Date LoopMe grants You a limited, revocable, non-exclusive, non-transferable license and hence the right during the Term to access and use the Program via the Program Interface and use the LoopMe Materials solely for the purpose of enabling You to receive the benefit of the Program. You will have no right to use, perform, display, reproduce and distribute LoopMe Materials for any other purpose. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by LoopMe or updated in LoopMe website from time to time as made available to you.
- You acknowledge that You obtain no rights in the Program, Ads and/ or in any LoopMe Materials or the Intellectual Property Rights in or relating to them or to receive or access the Program save as expressly provided in this Agreement.
- LoopMe Attribution. You agree that LoopMe may include LoopMe brand features or other LoopMe attribution (collectively, “Brand Features”) on any Advertisements transmitted by LoopMe via any Service. You agree that LoopMe may include Brand Features on any webview, website, or other medium displayed to an End User through the LoopMe SDK’s EU Consent Solution.
- Marketing and Publicity. LoopMe shall have the right to and You hereby grant LoopMe a non-exclusive, royalty-free, worldwide, fully paid-up license under all of Your applicable rights to use and display Your name, trademarks, trade names, service marks and/or logos as well as those of the applications in the Publisher Network in customer lists, website listings of customers, presentations, marketing materials, case studies, blog posts and other marketing-related activities.
- This Agreement will be effective as of the date LoopMe activates Your Program account and will continue unless earlier terminated as provided in this Agreement. LoopMe may terminate this Agreement at any given point, with or without cause, and reasonably endeavour to notify you of the same. For any violations by LoopMe of the terms of this Agreement, You will give LoopMe a notice period of forty eight (48) hours to cure such violations, and if such violation is not cured within the 48 hours of You sending such notice to LoopMe, You may terminate this Agreement.
- On termination of the Agreement for any reason:
- i. All licenses granted by LoopMe under this Agreement shall immediately terminate; and
- ii. You shall uninstall or otherwise remove any means of access to the Program provided under the Agreement including client software and any LoopMe SDK or API code supplied by LoopMe for that purpose;
- iii. You shall immediately return any and all of the Confidential Information of LoopMe and any and all of the LoopMe Material provided to You by LoopMe;
- The termination of the Agreement shall be without prejudice to any accrued rights and obligations of the parties arising under the Agreement prior to such termination;
- Any provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination, will continue to be in effect post the termination of this Agreement.
- Data. You acknowledge and agree that LoopMe may, as a result of You accessing the Services, process personal data (as such terms are defined in the applicable Data Protection Legislation) on Your behalf. You further agree that LoopMe may use and access any data obtained hereunder for any such purpose as it deems fit in accordance with applicable law.
- You shall be responsible for ensuring that access and use of Your Supply Inventory by the end users are subject to and governed by a privacy policy appropriately displayed and communicated to the end users by You in accordance with industry standard practices. Such privacy policy shall be in compliance with all applicable data protection and privacy legislations including but not limited to Children’s Online Privacy Protection Act (“COPPA”) and shall also mention use of third party service providers and use of cookies for the purposes of serving Ads.
- Data Protection Legislation means the shall mean (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced); and all other applicable laws and regulations in any jurisdiction in the world relating to the processing of personal data, privacy and online behavioral advertising including, where applicable, the guidance and codes of practice issued by any regulator or end user; and
- You may use Your Data that You receive for Your internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Data, and provided that You have obtained all consents, authorizations and clearances from end users that may be required in connection therewith. “Your Data” means any data belonging to You or to third parties and used by You under license which may be stored and/or processed by LoopMe because of Your use or access of Program. In cases, where LoopMe receives any of Your Data which is stored and/or processed by LoopMe as a result of the use and access of the Program, You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to LoopMe to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision of use of the Program (including the use of the Program by third parties).
- You shall own all rights, title and interest in and to all Your Data and shall be solely responsible for the legality, reliability, integrity, accuracy and quality of Your Data. LoopMe shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
- User Volunteered Data. If You enable the collection and use of any User Volunteered Data via Publisher Ads, You must expressly disclose to such individual End User that such collection is solely on behalf of You or Your Advertisers (and not LoopMe). As between LoopMe and You, User Volunteered Data shall be Your or Your Advertiser’s sole property and confidential information, and shall be subject to You or Your Advertiser’s posted privacy policy. “User Volunteered Data” means any personally identifiable information of End Users collected by You or Your Advertiser via any Advertisements.
- Controller Relationship. You acknowledge that You and LoopMe are each independent controllers of the personal data processed in order to provide the Services and that LoopMe will individually determine the purposes and means of processing described in this Agreement. In no event will the parties process personal data as joint controllers. Each party shall be individually and separately responsible for the obligations that apply to it as a controller with respect to the processing of personal data. LoopMe is the data controller with respect to the processing of any personal data from End Users outside of the United States, including those located in the European Economic Area, the United Kingdom, and Switzerland.
- EU Consent Solution. If You would like to serve personalized advertising to End Users in the European Economic Area, the United Kingdom, and Switzerland, You will use a solution to obtain consent from such end users in a manner compliant to applicable laws. You will not alter or modify the consent solution or otherwise attempt to fraudulently pass consent on behalf of the End User.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE ADVERTISEMENTS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- NEITHER PARTY AND ITS WHOLLY OWNED SUBSIDIARIES WILL NOT BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE PROGRAM), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF LOOPME AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE AGGREGATE LIABILITY OF LOOPME FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER THAT LIABILITY ARISES) SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES UP TO $500.
- You represent and warrant that: (a) You have and will maintain throughout the Program Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Your Supply Inventory, to display Ads on the Supply Inventory, and to permit LoopMe to perform the services contemplated under this Agreement; (c) all of the information provided by You to LoopMe to enroll in the Program is correct and current at all times; (d) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (e) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003, COPPA Act and any other relevant laws in the Data Protection Legislation for Your performance of any acts hereunder; (f) You comply with and have any and all consents, authorizations and clearances from end users of the Supply Inventory to allow LoopMe to collect and use the Data in accordance with Section 7(a), and as may be required for LoopMe to provide services hereunder; (g) You will at all times comply with LoopMe Policies as available at www.loopme.com.
- The parties shall at all times comply with the Children’s Online Privacy Protection Act (“COPPA”) while performing its obligations of this Agreement. LoopMe shall therefore not use or allow use of: (a) behavorial targeted ads to users under 13; (b) creation profiles of users under 13 or (c) collection of personal information from users under 13 You shall therefore not use or allow use of: (a) games or applications directed to users under 13 in the Supply Inventory; (b) creation profiles of users under 13 or (c) collection of personal information from users under 13.
- Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under, this Contract to any third party without the prior written consent of LoopMe (which may be delayed or withheld in its discretion).
- Assignment and Subcontracting by LoopMe: LoopMe shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
- No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
- Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
- Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract. In the event of any conflict between this Agreement and any written agreement(s) between LoopMe and You, which have been signed by both parties after the effective date of this Agreement, regarding any Service, the terms of the written agreement(s) will take precedence over the specific terms of this Agreement with respect to such conflict.
- Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). LoopMe shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond LoopMe’s reasonable control.
- Amendments: LoopMe reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by LoopMe, You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Contract by notice in writing to LoopMe. In the event of such termination, clause 12 above shall apply.
- Notices: LoopMe may notify You for any purpose under this Agreement via a) registered or certified mail, postage prepaid, return receipt requested, (b) private courier service, or (c) facsimile addressed to the respective addresses of the parties as first above written or at such other addresses as LoopMe may designate by like notice from time to time, including via email.
- Independent Contractors. LoopMe and You are not legal partners or agents, but are independent contractors, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- This Agreement and any dispute or claim arising in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
Effective July 29, 2020 to March 21, 2022
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- The Program allows You to monetize Your Supply Inventory by paying you a CPM price for the viewable impressions displayed by LoopMe for LoopMe buyers. If You are accepted as a publisher in the Program and where Ads are successfully displayed on the Supply Inventory, LoopMe will pay You such amount as reflected on and on the basis of the LoopMe dashboard which You will have access to and be provided with once you register with LoopMe. For the sake of clarity, Your Supply Inventory shall not include any apps that do not feature on the Google Play Store or the Apple App Store. LoopMe shall not be liable to pay for any traffic from apps that are not part of either the Play Store or App Store.
- You shall be responsible for raising a valid invoice within five (5) working days of the end of the applicable month of active promotions under Your account and emailing the invoice to finance@loopme.com. LoopMe will pay all undisputed Fees as stated on the invoice within 60 days from the receipt of such invoice. If there are any disputed amounts, both parties shall negotiate in good faith to resolve them. No payments will be issued for any amount less than $100 (USD) and any unpaid earnings will rollover and be charged on the next invoice (such amounts shall be noted on the face of the invoice for prior periods).
- The Parties agree that LoopMe’s obligation to pay amounts invoiced hereunder shall be subject to LoopMe’s receipt of funds from the applicable Buyer. LoopMe shall use reasonable endeavours to collect all monies due to LoopMe.
- From time to time LoopMe will run promotions for new customers to help them gain better value out of LoopMe and to encourage new publishers. You are responsible for the promo code being entered. LoopMe is under no obligation to enter it for you. If it is not entered, LoopMe will not pay You the amount the offer is valid for.
- Subject to invoice approval. LoopMe will pay invoices as noted above. Payments can be made in US dollars ($US), £ Sterling or Euros only. We shall send payment to you via wire transfer / BAC’s transfer. Our only liability is to send payment using the bank details provided by You and we shall have no liability for lost payments as a result of details being incorrectly entered by You. LoopMe shall not be liable for any bank charges attributable to the transfer, and shall be entitled to set off the same against the invoice as raised by You.
- LoopMe reserves the right to discontinue the Program, withhold payment at any time, and/or terminate any agreement with You, without liability to You, if LoopMe reasonably suspects that any of the following have occurred on Your Supply Inventory: (i) any form of Fraudulent Activity or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable laws or is reasonably likely to have a negative commercial impact on LoopMe, its advertisers or business partners. Without limitation to the foregoing, LoopMe may, at its sole discretion, credit back to advertisers and/or offset against future payments to You any payments which it subsequently determines accrued as a result of such Fraudulent activity or illegal activity. The term “Fraudulent Activity” for the purposes of this Agreement means, Fraudulent Activity includes without limitation, any activities by You that authorize or encourage any third party to: (1) generate impressions of or clicks on any Ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (2) mislead users to click on Ad(s); (3) in any way minimize or obstruct the display of any Ad(s); or edit, modify, filter or change the order of the information contained in any Advertisements; (4) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by LoopMe; (5) fraudulent passing off, including but not limited to spoofing the unique identifier of the ad spot which could be a url or an app name; (6) providing inventory that is not as agreed with LoopMe, including but not limited to providing inventory which is of lesser quality; or (7) reverse engineer, decompile or disassemble any software components of the advertising services provided by LoopMe.LoopMe may at its sole discretion seek liquidated damages not exceeding 50% of the amount payable to you under the Program for any breach of this Section II (f).
- Taxes: All payments are inclusive of taxes. Excluding any taxes on the income of a party, any taxes, including but not limited to sales, GST, VAT, excise, service tax, or such other transaction taxes, applicable in connection with this Agreement shall be borne and remitted by You to the relevant tax authorities. In case applicable laws require withholding of any amount on account of withholding taxes, LoopMe may withhold such amounts, unless You provides a certificate of exemption from such withholding taxes. Amounts payable to You shall not be grossed up on account of withholding taxes. Further LoopMe and You shall co-operate to enable each party to more accurately determine the respective tax liability and to minimize such liability, to the extent legally permissible.
- You will implement the Program in a manner that complies with the technical and implementation requirements provided by LoopMe from time to time, which may include integration or distribution of software, implementation of APIs or SDKs, complying with protocols and any other instructions contained in the LoopMe documentation (collectively, the “Protocol”). LoopMe will provide reasonable support and cooperation to You through the implementation process. All the materials provided to You by LoopMe (including the Protocol, APIs or SDKs or Ads in relation to this Agreement (LoopMe Materials) are the property of LoopMe and is sub-licensed to You for the performance of the respective obligations of the Parties under this Agreement. It is Your responsibility to ensure that You have appropriate protection for Your computers, software, data and applications including any systems that You use to access the Services or any LoopMe Materials and that LoopMe shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your access of the Services or use of the LoopMe Materials.
- Content. You are solely responsible for Your Inventory and all aspects of Your Supply Inventory (including content and subject matter, editorial, text, graphic, audiovisual, and other content and any other information) and/ or the activities of any third parties within Your Inventory.
- Your Account. You will protect any Program accounts You use to access any of the Services (each, an “Account”) and any usernames, passwords, verification codes, and any other account access or authentication information associated with the Account (“Credentials”) against any unauthorized access and use, and will take full responsibility for Your own, and any authorized or unauthorized third party, use of the Credentials or the Account. You will ensure that all information in Your Account, including, but not limited to, full name, contact address, and bank account information is up-to-date, complete and accurate. You acknowledge and agree that any remittances owed to You in connection with Your use of the Services may be delayed in the event that Your Account information is not up-to-date, complete and accurate. You may only grant access to Your Account to third parties approved by LoopMe solely to allow such third parties to access and manage Your Account on Your behalf; provided, however, that You shall (i) require that such third parties agree to be bound by the terms of this Agreement; (ii) ensure that such third parties comply fully with all provisions of this Agreement, and (iii) be fully responsible and liable for the acts and omissions of such third parties. Misrepresenting ownership and fraudulent claiming of applications in the LoopMe UI is strictly prohibited and may result in a permanent ban from the Services. You agree that to the extent You create a new Account, it must be pre-approved by LoopMe and registered to You under the same entity or name as your other Account(s); if not pre-approved or registered with the same entity or name, any right to any remittance is automatically waived by You.
- Policies. Use of the Program is subject to all applicable LoopMe ad specification requirements and policies, including without limitation, the LoopMe Program Policies, and the LoopMe Privacy Policy (collectively, the “Policies”), each as which may be updated from time to time by LoopMe.
- Privacy Policy. You must post and abide by a conspicuous and legally adequate privacy policy on each application and/or service of Your Inventory that must disclose the collection of Service Data by third parties such as LoopMe for personalized advertising purposes. You will comply with all applicable laws, rules, and regulations relating to the collection, use and sharing of information about any user who views, is able to view, or interacts with any advertisement in connection with Your Use of any of the Services (“End User(s)”). You must post, and if Your Inventory includes third party apps, then You will contractually require such third parties to post, such privacy policy on all applications in Your Inventory.
- Prohibited Actions. You will not, and will not allow any third party to: (a) use, directly or indirectly access, launch or activate the Program or LoopMe Materials through or from, or otherwise incorporate the Program in, any software application, website or other means other than Your designated sites; (b) transfer, sell, lease, syndicate, sublicense or lend the Program or LoopMe Materials; (c) directly or indirectly generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Program or any LoopMe Materials,; (f) remove, deface, obscure, or alter LoopMe’s proprietary rights notices affixed to or provided as a part of the Program, the LoopMe Protocol, or any other LoopMe Materials (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Program, LoopMe Materials or any other proprietary information related thereto; (h) use any feature or functionality of the Program, or include anything in Your Supply Inventory, that could be used to personally identify or personally track individual end users or any other persons; or (i) engage in any action or practice that reflects poorly on LoopMe or otherwise disparages or devalues LoopMe’s reputation or goodwill. LoopMe may terminate the Program, immediately upon written notice if You breach this Section.
- No Endorsement. You acknowledge and agree that LoopMe is not affiliated with or responsible for any third-party products/services You may choose to manage with the Program. LoopMe reserves the right, but will have no responsibility, to refuse to post or remove any Disclaimed Content, in whole or in part, that in LoopMe, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement. Disclaimed Content means, any part of Your Supply Inventory or Your Inventory that may be considered to contain any hate-related, pornographic, libelous, sexually explicit, violent or otherwise offensive content or contain any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third-party rights or which are reasonably likely to subject LoopMe or its Buyers or business partners to negative publicity. You represent and warrants to LoopMe that the Supply Inventory are legal to distribute, does not and shall not infringe on any third-party intellectual property right (including, without limitation, trademarks, patents, copyrights, rights of publicity, moral rights, or any other third-party right) and does not otherwise violate any applicable law or regulation, including any criminal law.
- Compliance. LoopMe may investigate any activity that may violate this Agreement. If You violate this Agreement or any Policies, LoopMe may in its sole discretion, with a prior notice of forty-eight (48) hours, terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. For any other violations, LoopMe will give you forty eight (48) hour notice period to cure such violations, and if such violation is not cured within the 48 hours of LoopMe sending such notice to You, LoopMe may terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. . LoopMe may refuse to process a request for display of Ads (“Ad Requests”) that are not sent in compliance with the requirements of this Agreement. Further LoopMe shall not be liable for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any LoopMe Materials (or any part thereof).
- Third-Party Terms. You (i) will comply with any third-party terms and conditions applicable to the development and distribution of applications within Your Inventory, including, without limitation, any third-party terms and conditions applicable to Your development and distribution of any part of Your Inventory operating on the Android or iOS mobile operating systems or any other operating system supported by LoopMe now or in the future (collectively, “Third-Party Terms”), and (ii) will not cause LoopMe to be in violation of any such Third-Party Terms.
- Third Party Services. LoopMe may use third party services providers to make certain services available to You, including to view performance metrics. Such third party services may change at any time, in LoopMe’s sole discretion. You are solely responsible for the use and security of any accounts made available by way of such third party services and You are solely responsible for any activities of any person authorized by You to have access to such accounts. LoopMe may also include third party software, as utilized by LoopMe from time to time, in the SDK to support certain features (e.g., viewability, fraud, geo-verification, and other measurement reporting) that may be made available through such third parties’ services, including to You, advertisers, demand side platforms, and other participants in the Program. By integrating the SDK without disabling or removing this third party software, You acknowledge and agree that such third party software provider’s privacy policy, terms of service and SDK license agreement, respectively, as may be updated by such third party from time to time, shall apply to Your integration and use of their software.
- Subject to the terms and conditions of this Agreement, with effect from the Effective Date LoopMe grants You a limited, revocable, non-exclusive, non-transferable license and hence the right during the Term to access and use the Program via the Program Interface and use the LoopMe Materials solely for the purpose of enabling You to receive the benefit of the Program. You will have no right to use, perform, display, reproduce and distribute LoopMe Materials for any other purpose. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by LoopMe or updated in LoopMe website from time to time as made available to you
- You acknowledge that You obtain no rights in the Program, Ads and/ or in any LoopMe Materials or the Intellectual Property Rights in or relating to them or to receive or access the Program save as expressly provided in this Agreement.
- LoopMe Attribution. You agree that LoopMe may include LoopMe brand features or other LoopMe attribution (collectively, “Brand Features”) on any Advertisements transmitted by LoopMe via any Service. You agree that LoopMe may include Brand Features on any webview, website, or other medium displayed to an End User through the LoopMe SDK’s EU Consent Solution.
- Marketing and Publicity. LoopMe shall have the right to and You hereby grant LoopMe a non-exclusive, royalty-free, worldwide, fully paid-up license under all of Your applicable rights to use and display Your name, trademarks, trade names, service marks and/or logos as well as those of the applications in the Publisher Network in customer lists, website listings of customers, presentations, marketing materials, case studies, blog posts and other marketing-related activities.
- This Agreement will be effective as of the date LoopMe activates Your Program account and will continue unless earlier terminated as provided in this Agreement. LoopMe may terminate this Agreement at any given point, with or without cause, and reasonably endeavour to notify you of the same. For any violations by LoopMe of the terms of this Agreement, You will give LoopMe a notice period of forty eight (48) hours to cure such violations, and if such violation is not cured within the 48 hours of You sending such notice to LoopMe, You may terminate this Agreement.
- On termination of the Agreement for any reason:
- i. All licenses granted by LoopMe under this Agreement shall immediately terminate; and
- ii. You shall uninstall or otherwise remove any means of access to the Program provided under the Agreement including client software and any LoopMe SDK or API code supplied by LoopMe for that purpose;
- iii. You shall immediately return any and all of the Confidential Information of LoopMe and any and all of the LoopMe Material provided to You by LoopMe;
- The termination of the Agreement shall be without prejudice to any accrued rights and obligations of the parties arising under the Agreement prior to such termination;
- Any provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination, will continue to be in effect post the termination of this Agreement.
- Data. You acknowledge and agree that LoopMe may, as a result of You accessing the Services, process personal data (as such terms are defined in the applicable Data Protection Legislation) on Your behalf. You further agree that LoopMe may use and access any data obtained hereunder for any such purpose as it deems fit in accordance with applicable law.
- You shall be responsible for ensuring that access and use of Your Supply Inventory by the end users are subject to and governed by a privacy policy appropriately displayed and communicated to the end users by You in accordance with industry standard practices. Such privacy policy shall be in compliance with all applicable data protection and privacy legislations including but not limited to Children’s Online Privacy Protection Act (“COPPA”) and shall also mention use of third party service providers and use of cookies for the purposes of serving Ads.
- Data Protection Legislation means the shall mean (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced); and all other applicable laws and regulations in any jurisdiction in the world relating to the processing of personal data, privacy and online behavioral advertising including, where applicable, the guidance and codes of practice issued by any regulator or end user; and
- You may use Your Data that You receive for Your internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Data, and provided that You have obtained all consents, authorizations and clearances from end users that may be required in connection therewith. “Your Data” means any data belonging to You or to third parties and used by You under license which may be stored and/or processed by LoopMe because of Your use or access of Program. In cases, where LoopMe receives any of Your Data which is stored and/or processed by LoopMe as a result of the use and access of the Program, You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to LoopMe to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision of use of the Program (including the use of the Program by third parties).
- You shall own all rights, title and interest in and to all Your Data and shall be solely responsible for the legality, reliability, integrity, accuracy and quality of Your Data. LoopMe shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
- User Volunteered Data. If You enable the collection and use of any User Volunteered Data via Publisher Ads, You must expressly disclose to such individual End User that such collection is solely on behalf of You or Your Advertisers (and not LoopMe). As between LoopMe and You, User Volunteered Data shall be Your or Your Advertiser’s sole property and confidential information, and shall be subject to You or Your Advertiser’s posted privacy policy. “User Volunteered Data” means any personally identifiable information of End Users collected by You or Your Advertiser via any Advertisements.
- Controller Relationship. You acknowledge that You and LoopMe are each independent controllers of the personal data processed in order to provide the Services and that LoopMe will individually determine the purposes and means of processing described in this Agreement. In no event will the parties process personal data as joint controllers. Each party shall be individually and separately responsible for the obligations that apply to it as a controller with respect to the processing of personal data. LoopMe is the data controller with respect to the processing of any personal data from End Users outside of the United States, including those located in the European Economic Area, the United Kingdom, and Switzerland.
- EU Consent Solution. If You would like to serve personalized advertising to End Users in the European Economic Area, the United Kingdom, and Switzerland, You will use a solution to obtain consent from such end users in a manner compliant to applicable laws. You will not alter or modify the consent solution or otherwise attempt to fraudulently pass consent on behalf of the End User.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE ADVERTISEMENTS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- NEITHER PARTY AND ITS WHOLLY OWNED SUBSIDIARIES WILL NOT BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE PROGRAM), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF LOOPME AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE AGGREGATE LIABILITY OF LOOPME FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER THAT LIABILITY ARISES) SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES UP TO $500.
- You represent and warrant that: (a) You have and will maintain throughout the Program Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Your Supply Inventory, to display Ads on the Supply Inventory, and to permit LoopMe to perform the services contemplated under this Agreement; (c) all of the information provided by You to LoopMe to enroll in the Program is correct and current at all times; (d) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (e) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003, COPPA Act and any other relevant laws in the Data Protection Legislation for Your performance of any acts hereunder; (f) You comply with and have any and all consents, authorizations and clearances from end users of the Supply Inventory to allow LoopMe to collect and use the Data in accordance with Section 7(a), and as may be required for LoopMe to provide services hereunder; (g) You will at all times comply with LoopMe Policies as available at www.loopme.com.
- The parties shall at all times comply with the Children’s Online Privacy Protection Act (“COPPA”) while performing its obligations of this Agreement. LoopMe shall therefore not use or allow use of: (a) behavorial targeted ads to users under 13; (b) creation profiles of users under 13 or (c) collection of personal information from users under 13 You shall therefore not use or allow use of: (a) games or applications directed to users under 13 in the Supply Inventory; (b) creation profiles of users under 13 or (c) collection of personal information from users under 13.
- Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under, this Contract to any third party without the prior written consent of LoopMe (which may be delayed or withheld in its discretion).
- Assignment and Subcontracting by LoopMe: LoopMe shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
- No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
- Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
- Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract. In the event of any conflict between this Agreement and any written agreement(s) between LoopMe and You, which have been signed by both parties after the effective date of this Agreement, regarding any Service, the terms of the written agreement(s) will take precedence over the specific terms of this Agreement with respect to such conflict.
- Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). LoopMe shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond LoopMe’s reasonable control.
- Amendments: LoopMe reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by LoopMe, You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Contract by notice in writing to LoopMe. In the event of such termination, clause 12 above shall apply.
- Notices: LoopMe may notify You for any purpose under this Agreement via a) registered or certified mail, postage prepaid, return receipt requested, (b) private courier service, or (c) facsimile addressed to the respective addresses of the parties as first above written or at such other addresses as LoopMe may designate by like notice from time to time, including via email.
- Independent Contractors. LoopMe and You are not legal partners or agents, but are independent contractors, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- This Agreement and any dispute or claim arising in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
Effective April 23, 2020 to July 29, 2020
DownloadTable of Contents
- The Program allows You to monetize Your Supply Inventory by paying you a CPM price for the viewable impressions displayed by LoopMe for LoopMe buyers. If You are accepted as a publisher in the Program and where Ads are successfully displayed on the Supply Inventory, LoopMe will pay You such amount as reflected on and on the basis of the LoopMe dashboard which You will have access to and be provided with once you register with LoopMe. For the sake of clarity, Your Supply Inventory shall not include any apps that do not feature on the Google Play Store or the Apple App Store. LoopMe shall not be liable to pay for any traffic from apps that are not part of either the Play Store or App Store.
- You shall be responsible for raising a valid invoice within five (5) working days of the end of the applicable month of active promotions under Your account and emailing the invoice to finance@loopme.com. LoopMe will pay all undisputed Fees as stated on the invoice within 60 days from the receipt of such invoice. If there are any disputed amounts, both parties shall negotiate in good faith to resolve them. No payments will be issued for any amount less than $100 (USD) and any unpaid earnings will rollover and be charged on the next invoice (such amounts shall be noted on the face of the invoice for prior periods).
- The Parties agree that LoopMe’s obligation to pay amounts invoiced hereunder shall be subject to LoopMe’s receipt of funds from the applicable Buyer. LoopMe shall use reasonable endeavours to collect all monies due to LoopMe.
- From time to time LoopMe will run promotions for new customers to help them gain better value out of LoopMe and to encourage new publishers. You are responsible for the promo code being entered. LoopMe is under no obligation to enter it for you. If it is not entered, LoopMe will not pay You the amount the offer is valid for.
- Subject to invoice approval. LoopMe will pay invoices as noted above. Payments can be made in US dollars ($US), £ Sterling or Euros only. We shall send payment to you via wire transfer / BAC’s transfer. Our only liability is to send payment using the bank details provided by You and we shall have no liability for lost payments as a result of details being incorrectly entered by You. LoopMe shall not be liable for any bank charges attributable to the transfer, and shall be entitled to set off the same against the invoice as raised by You.
- LoopMe reserves the right to discontinue the Program, withhold payment at any time, and/or terminate any agreement with You, without liability to You, if LoopMe reasonably suspects that any of the following have occurred on Your Supply Inventory: (i) any form of Fraudulent Activity or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable laws or is reasonably likely to have a negative commercial impact on LoopMe, its advertisers or business partners. Without limitation to the foregoing, LoopMe may, at its sole discretion, credit back to advertisers and/or offset against future payments to You any payments which it subsequently determines accrued as a result of such Fraudulent activity or illegal activity. The term “Fraudulent Activity” for the purposes of this Agreement means, Fraudulent Activity includes without limitation, any activities by You that authorize or encourage any third party to: (1) generate impressions of or clicks on any Ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (2) mislead users to click on Ad(s); (3) in any way minimize or obstruct the display of any Ad(s); or edit, modify, filter or change the order of the information contained in any Advertisements; (4) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by LoopMe; (5) fraudulent passing off, including but not limited to spoofing the unique identifier of the ad spot which could be a url or an app name; (6) providing inventory that is not as agreed with LoopMe, including but not limited to providing inventory which is of lesser quality; or (7) reverse engineer, decompile or disassemble any software components of the advertising services provided by LoopMe.LoopMe may at its sole discretion seek liquidated damages not exceeding 50% of the amount payable to you under the Program for any breach of this Section II (f).
- Taxes: All payments are inclusive of taxes. Excluding any taxes on the income of a party, any taxes, including but not limited to sales, GST, VAT, excise, service tax, or such other transaction taxes, applicable in connection with this Agreement shall be borne and remitted by You to the relevant tax authorities. In case applicable laws require withholding of any amount on account of withholding taxes, LoopMe may withhold such amounts, unless You provides a certificate of exemption from such withholding taxes. Amounts payable to You shall not be grossed up on account of withholding taxes. Further LoopMe and You shall co-operate to enable each party to more accurately determine the respective tax liability and to minimize such liability, to the extent legally permissible.
- You will implement the Program in a manner that complies with the technical and implementation requirements provided by LoopMe from time to time, which may include integration or distribution of software, implementation of APIs or SDKs, complying with protocols and any other instructions contained in the LoopMe documentation (collectively, the “Protocol”). LoopMe will provide reasonable support and cooperation to You through the implementation process. All the materials provided to You by LoopMe (including the Protocol, APIs or SDKs or Ads in relation to this Agreement (LoopMe Materials) are the property of LoopMe and is sub-licensed to You for the performance of the respective obligations of the Parties under this Agreement. It is Your responsibility to ensure that You have appropriate protection for Your computers, software, data and applications including any systems that You use to access the Services or any LoopMe Materials and that LoopMe shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your access of the Services or use of the LoopMe Materials.
- Content. You are solely responsible for Your Inventory and all aspects of Your Supply Inventory (including content and subject matter, editorial, text, graphic, audiovisual, and other content and any other information) and/ or the activities of any third parties within Your Inventory.
- Your Account. You will protect any Program accounts You use to access any of the Services (each, an “Account”) and any usernames, passwords, verification codes, and any other account access or authentication information associated with the Account (“Credentials”) against any unauthorized access and use, and will take full responsibility for Your own, and any authorized or unauthorized third party, use of the Credentials or the Account. You will ensure that all information in Your Account, including, but not limited to, full name, contact address, and bank account information is up-to-date, complete and accurate. You acknowledge and agree that any remittances owed to You in connection with Your use of the Services may be delayed in the event that Your Account information is not up-to-date, complete and accurate. You may only grant access to Your Account to third parties approved by LoopMe solely to allow such third parties to access and manage Your Account on Your behalf; provided, however, that You shall (i) require that such third parties agree to be bound by the terms of this Agreement; (ii) ensure that such third parties comply fully with all provisions of this Agreement, and (iii) be fully responsible and liable for the acts and omissions of such third parties. Misrepresenting ownership and fraudulent claiming of applications in the LoopMe UI is strictly prohibited and may result in a permanent ban from the Services. You agree that to the extent You create a new Account, it must be pre-approved by LoopMe and registered to You under the same entity or name as your other Account(s); if not pre-approved or registered with the same entity or name, any right to any remittance is automatically waived by You.
- Policies. Use of the Program is subject to all applicable LoopMe ad specification requirements and policies, including without limitation, the LoopMe Program Policies, and the LoopMe Privacy Policy (collectively, the “Policies”), each as which may be updated from time to time by LoopMe.
- Privacy Policy. You must post and abide by a conspicuous and legally adequate privacy policy on each application and/or service of Your Inventory that must disclose the collection of Service Data by third parties such as LoopMe for personalized advertising purposes. You will comply with all applicable laws, rules, and regulations relating to the collection, use and sharing of information about any user who views, is able to view, or interacts with any advertisement in connection with Your Use of any of the Services (“End User(s)”). You must post, and if Your Inventory includes third party apps, then You will contractually require such third parties to post, such privacy policy on all applications in Your Inventory.
- Prohibited Actions. You will not, and will not allow any third party to: (a) use, directly or indirectly access, launch or activate the Program or LoopMe Materials through or from, or otherwise incorporate the Program in, any software application, website or other means other than Your designated sites; (b) transfer, sell, lease, syndicate, sublicense or lend the Program or LoopMe Materials; (c) directly or indirectly generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Program or any LoopMe Materials,; (f) remove, deface, obscure, or alter LoopMe’s proprietary rights notices affixed to or provided as a part of the Program, the LoopMe Protocol, or any other LoopMe Materials (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Program, LoopMe Materials or any other proprietary information related thereto; (h) use any feature or functionality of the Program, or include anything in Your Supply Inventory, that could be used to personally identify or personally track individual end users or any other persons; or (i) engage in any action or practice that reflects poorly on LoopMe or otherwise disparages or devalues LoopMe’s reputation or goodwill. LoopMe may terminate the Program, immediately upon written notice if You breach this Section.
- No Endorsement. You acknowledge and agree that LoopMe is not affiliated with or responsible for any third-party products/services You may choose to manage with the Program. LoopMe reserves the right, but will have no responsibility, to refuse to post or remove any Disclaimed Content, in whole or in part, that in LoopMe, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement. Disclaimed Content means, any part of Your Supply Inventory or Your Inventory that may be considered to contain any hate-related, pornographic, libelous, sexually explicit, violent or otherwise offensive content or contain any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third-party rights or which are reasonably likely to subject LoopMe or its Buyers or business partners to negative publicity. You represent and warrants to LoopMe that the Supply Inventory are legal to distribute, does not and shall not infringe on any third-party intellectual property right (including, without limitation, trademarks, patents, copyrights, rights of publicity, moral rights, or any other third-party right) and does not otherwise violate any applicable law or regulation, including any criminal law.
- Compliance. LoopMe may investigate any activity that may violate this Agreement. If You violate this Agreement or any Policies, LoopMe may in its sole discretion, with a prior notice of forty-eight (48) hours, terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. For any other violations, LoopMe will give you forty eight (48) hour notice period to cure such violations, and if such violation is not cured within the 48 hours of LoopMe sending such notice to You, LoopMe may terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. . LoopMe may refuse to process a request for display of Ads (“Ad Requests”) that are not sent in compliance with the requirements of this Agreement. Further LoopMe shall not be liable for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any LoopMe Materials (or any part thereof).
- Third-Party Terms. You (i) will comply with any third-party terms and conditions applicable to the development and distribution of applications within Your Inventory, including, without limitation, any third-party terms and conditions applicable to Your development and distribution of any part of Your Inventory operating on the Android or iOS mobile operating systems or any other operating system supported by LoopMe now or in the future (collectively, “Third-Party Terms”), and (ii) will not cause LoopMe to be in violation of any such Third-Party Terms.
- Third Party Services. LoopMe may use third party services providers to make certain services available to You, including to view performance metrics. Such third party services may change at any time, in LoopMe’s sole discretion. You are solely responsible for the use and security of any accounts made available by way of such third party services and You are solely responsible for any activities of any person authorized by You to have access to such accounts. LoopMe may also include third party software, as utilized by LoopMe from time to time, in the SDK to support certain features (e.g., viewability, fraud, geo-verification, and other measurement reporting) that may be made available through such third parties’ services, including to You, advertisers, demand side platforms, and other participants in the Program. By integrating the SDK without disabling or removing this third party software, You acknowledge and agree that such third party software provider’s privacy policy, terms of service and SDK license agreement, respectively, as may be updated by such third party from time to time, shall apply to Your integration and use of their software.
- Subject to the terms and conditions of this Agreement, with effect from the Effective Date LoopMe grants You a limited, revocable, non-exclusive, non-transferable license and hence the right during the Term to access and use the Program via the Program Interface and use the LoopMe Materials solely for the purpose of enabling You to receive the benefit of the Program. You will have no right to use, perform, display, reproduce and distribute LoopMe Materials for any other purpose. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by LoopMe or updated in LoopMe website from time to time as made available to you
- You acknowledge that You obtain no rights in the Program, Ads and/ or in any LoopMe Materials or the Intellectual Property Rights in or relating to them or to receive or access the Program save as expressly provided in this Agreement.
- LoopMe Attribution. You agree that LoopMe may include LoopMe brand features or other LoopMe attribution (collectively, “Brand Features”) on any Advertisements transmitted by LoopMe via any Service. You agree that LoopMe may include Brand Features on any webview, website, or other medium displayed to an End User through the LoopMe SDK’s EU Consent Solution.
- Marketing and Publicity. LoopMe shall have the right to and You hereby grant LoopMe a non-exclusive, royalty-free, worldwide, fully paid-up license under all of Your applicable rights to use and display Your name, trademarks, trade names, service marks and/or logos as well as those of the applications in the Publisher Network in customer lists, website listings of customers, presentations, marketing materials, case studies, blog posts and other marketing-related activities.
- This Agreement will be effective as of the date LoopMe activates Your Program account and will continue unless earlier terminated as provided in this Agreement. LoopMe may terminate this Agreement at any given point, with or without cause, and reasonably endeavour to notify you of the same. For any violations by LoopMe of the terms of this Agreement, You will give LoopMe a notice period of forty eight (48) hours to cure such violations, and if such violation is not cured within the 48 hours of You sending such notice to LoopMe, You may terminate this Agreement.
- On termination of the Agreement for any reason:
- i. All licenses granted by LoopMe under this Agreement shall immediately terminate; and
- ii. You shall uninstall or otherwise remove any means of access to the Program provided under the Agreement including client software and any LoopMe SDK or API code supplied by LoopMe for that purpose;
- iii. You shall immediately return any and all of the Confidential Information of LoopMe and any and all of the LoopMe Material provided to You by LoopMe;
- The termination of the Agreement shall be without prejudice to any accrued rights and obligations of the parties arising under the Agreement prior to such termination;
- Any provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination, will continue to be in effect post the termination of this Agreement.
- Data. You acknowledge and agree that LoopMe may, as a result of You accessing the Services, process personal data (as such terms are defined in the applicable Data Protection Legislation) on Your behalf. You further agree that LoopMe may use and access any data obtained hereunder for any such purpose as it deems fit in accordance with applicable law.
- You shall be responsible for ensuring that access and use of Your Supply Inventory by the end users are subject to and governed by a privacy policy appropriately displayed and communicated to the end users by You in accordance with industry standard practices. Such privacy policy shall be in compliance with all applicable data protection and privacy legislations including but not limited to Children’s Online Privacy Protection Act (“COPPA”) and shall also mention use of third party service providers and use of cookies for the purposes of serving Ads.
- Data Protection Legislation means the shall mean (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced); and all other applicable laws and regulations in any jurisdiction in the world relating to the processing of personal data, privacy and online behavioral advertising including, where applicable, the guidance and codes of practice issued by any regulator or end user; and
- You may use Your Data that You receive for Your internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Data, and provided that You have obtained all consents, authorizations and clearances from end users that may be required in connection therewith. “Your Data” means any data belonging to You or to third parties and used by You under license which may be stored and/or processed by LoopMe because of Your use or access of Program. In cases, where LoopMe receives any of Your Data which is stored and/or processed by LoopMe as a result of the use and access of the Program, You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to LoopMe to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision of use of the Program (including the use of the Program by third parties).
- You shall own all rights, title and interest in and to all Your Data and shall be solely responsible for the legality, reliability, integrity, accuracy and quality of Your Data. LoopMe shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
- User Volunteered Data. If You enable the collection and use of any User Volunteered Data via Publisher Ads, You must expressly disclose to such individual End User that such collection is solely on behalf of You or Your Advertisers (and not LoopMe). As between LoopMe and You, User Volunteered Data shall be Your or Your Advertiser’s sole property and confidential information, and shall be subject to You or Your Advertiser’s posted privacy policy. “User Volunteered Data” means any personally identifiable information of End Users collected by You or Your Advertiser via any Advertisements.
- Controller Relationship. You acknowledge that You and LoopMe are each independent controllers of the personal data processed in order to provide the Services and that LoopMe will individually determine the purposes and means of processing described in this Agreement. In no event will the parties process personal data as joint controllers. Each party shall be individually and separately responsible for the obligations that apply to it as a controller with respect to the processing of personal data. LoopMe is the data controller with respect to the processing of any personal data from End Users outside of the United States, including those located in the European Economic Area, the United Kingdom, and Switzerland.
- EU Consent Solution. If You would like to serve personalized advertising to End Users in the European Economic Area, the United Kingdom, and Switzerland, You will use a solution to obtain consent from such end users in a manner compliant to applicable laws. You will not alter or modify the consent solution or otherwise attempt to fraudulently pass consent on behalf of the End User.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE ADVERTISEMENTS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- NEITHER PARTY AND ITS WHOLLY OWNED SUBSIDIARIES WILL NOT BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE PROGRAM), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF LOOPME AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE AGGREGATE LIABILITY OF LOOPME FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER THAT LIABILITY ARISES) SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES UP TO $500.
- You represent and warrant that: (a) You have and will maintain throughout the Program Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Your Supply Inventory, to display Ads on the Supply Inventory, and to permit LoopMe to perform the services contemplated under this Agreement; (c) all of the information provided by You to LoopMe to enroll in the Program is correct and current at all times; (d) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (e) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003, COPPA Act and any other relevant laws in the Data Protection Legislation for Your performance of any acts hereunder; (f) You comply with and have any and all consents, authorizations and clearances from end users of the Supply Inventory to allow LoopMe to collect and use the Data in accordance with Section 7(a), and as may be required for LoopMe to provide services hereunder; (g) You will at all times comply with LoopMe Policies as available at www.loopme.com.
- The parties shall at all times comply with the Children’s Online Privacy Protection Act (“COPPA”) while performing its obligations of this Agreement. LoopMe shall therefore not use or allow use of: (a) behavorial targeted ads to users under 13; (b) creation profiles of users under 13 or (c) collection of personal information from users under 13 You shall therefore not use or allow use of: (a) games or applications directed to users under 13 in the Supply Inventory; (b) creation profiles of users under 13 or (c) collection of personal information from users under 13.
- Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under, this Contract to any third party without the prior written consent of LoopMe (which may be delayed or withheld in its discretion).
- Assignment and Subcontracting by LoopMe: LoopMe shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
- No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
- Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
- Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract. In the event of any conflict between this Agreement and any written agreement(s) between LoopMe and You, which have been signed by both parties after the effective date of this Agreement, regarding any Service, the terms of the written agreement(s) will take precedence over the specific terms of this Agreement with respect to such conflict.
- Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). LoopMe shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond LoopMe’s reasonable control.
- Amendments: LoopMe reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by LoopMe, You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Contract by notice in writing to LoopMe. In the event of such termination, clause 12 above shall apply.
- Notices: LoopMe may notify You for any purpose under this Agreement via a) registered or certified mail, postage prepaid, return receipt requested, (b) private courier service, or (c) facsimile addressed to the respective addresses of the parties as first above written or at such other addresses as LoopMe may designate by like notice from time to time, including via email.
- Independent Contractors. LoopMe and You are not legal partners or agents, but are independent contractors, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- This Agreement and any dispute or claim arising in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
- The Parties irrevocably agree that the courts situated at London, England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or it’s subject matter or formation (including non-contractual disputes or claims).
Effective February 18, 2020 to April 23, 2020
DownloadTable of Contents
- The Program allows You to monetize Your Supply Inventory by paying you a CPM price for the viewable impressions displayed by LoopMe for LoopMe buyers. If You are accepted as a publisher in the Program and where Ads are successfully displayed on the Supply Inventory, LoopMe will pay You such amount as reflected on and on the basis of the LoopMe dashboard which You will have access to and be provided with once you register with LoopMe. For the sake of clarity, Your Supply Inventory shall not include any apps that do not feature on the Google Play Store or the Apple App Store. LoopMe shall not be liable to pay for any traffic from apps that are not part of either the Play Store or App Store.
- You shall be responsible for raising a valid invoice within five (5) working days of the end of the applicable month of active promotions under Your account and emailing the invoice to finance@loopme.com. LoopMe will pay all undisputed Fees as stated on the invoice within 60 days from the receipt of such invoice. If there are any disputed amounts, both parties shall negotiate in good faith to resolve them. No payments will be issued for any amount less than $100 (USD) and any unpaid earnings will rollover and be charged on the next invoice (such amounts shall be noted on the face of the invoice for prior periods).
- The Parties agree that LoopMe’s obligation to pay amounts invoiced hereunder shall be subject to LoopMe’s receipt of funds from the applicable Buyer. LoopMe shall use reasonable endeavours to collect all monies due to LoopMe.
- From time to time LoopMe will run promotions for new customers to help them gain better value out of LoopMe and to encourage new publishers. You are responsible for the promo code being entered. LoopMe is under no obligation to enter it for you. If it is not entered, LoopMe will not pay You the amount the offer is valid for.
- Subject to invoice approval. LoopMe will pay invoices as noted above. Payments can be made in US dollars ($US), £ Sterling or Euros only. We shall send payment to you via wire transfer / BAC’s transfer. Our only liability is to send payment using the bank details provided by You and we shall have no liability for lost payments as a result of details being incorrectly entered by You. LoopMe shall not be liable for any bank charges attributable to the transfer, and shall be entitled to set off the same against the invoice as raised by You.
- LoopMe reserves the right to discontinue the Program, withhold payment at any time, and/or terminate any agreement with You, without liability to You, if LoopMe reasonably suspects that any of the following have occurred on Your Supply Inventory: (i) any form of Fraudulent Activity or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable laws or is reasonably likely to have a negative commercial impact on LoopMe, its advertisers or business partners. Without limitation to the foregoing, LoopMe may, at its sole discretion, credit back to advertisers and/or offset against future payments to You any payments which it subsequently determines accrued as a result of such Fraudulent activity or illegal activity. The term “Fraudulent Activity” for the purposes of this Agreement means, Fraudulent Activity includes without limitation, any activities by You that authorize or encourage any third party to: (1) generate impressions of or clicks on any Ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (2) mislead users to click on Ad(s); (3) in any way minimize or obstruct the display of any Ad(s); or edit, modify, filter or change the order of the information contained in any Advertisements; (4) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by LoopMe; (5) fraudulent passing off, including but not limited to spoofing the unique identifier of the ad spot which could be a url or an app name; (6) providing inventory that is not as agreed with LoopMe, including but not limited to providing inventory which is of lesser quality; or (7) reverse engineer, decompile or disassemble any software components of the advertising services provided by LoopMe.LoopMe may at its sole discretion seek liquidated damages not exceeding 50% of the amount payable to you under the Program for any breach of this Section II (f).
- Taxes: All payments are inclusive of taxes. Excluding any taxes on the income of a party, any taxes, including but not limited to sales, GST, VAT, excise, service tax, or such other transaction taxes, applicable in connection with this Agreement shall be borne and remitted by You to the relevant tax authorities. In case applicable laws require withholding of any amount on account of withholding taxes, LoopMe may withhold such amounts, unless You provides a certificate of exemption from such withholding taxes. Amounts payable to You shall not be grossed up on account of withholding taxes. Further LoopMe and You shall co-operate to enable each party to more accurately determine the respective tax liability and to minimize such liability, to the extent legally permissible.
- You will implement the Program in a manner that complies with the technical and implementation requirements provided by LoopMe from time to time, which may include integration or distribution of software, implementation of APIs or SDKs, complying with protocols and any other instructions contained in the LoopMe documentation (collectively, the “Protocol”). LoopMe will provide reasonable support and cooperation to You through the implementation process. All the materials provided to You by LoopMe (including the Protocol, APIs or SDKs or Ads in relation to this Agreement (LoopMe Materials) are the property of LoopMe and is sub-licensed to You for the performance of the respective obligations of the Parties under this Agreement. It is Your responsibility to ensure that You have appropriate protection for Your computers, software, data and applications including any systems that You use to access the Services or any LoopMe Materials and that LoopMe shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your access of the Services or use of the LoopMe Materials.
- Content. You are solely responsible for Your Inventory and all aspects of Your Supply Inventory (including content and subject matter, editorial, text, graphic, audiovisual, and other content and any other information) and/ or the activities of any third parties within Your Inventory.
- Your Account. You will protect any Program accounts You use to access any of the Services (each, an “Account”) and any usernames, passwords, verification codes, and any other account access or authentication information associated with the Account (“Credentials”) against any unauthorized access and use, and will take full responsibility for Your own, and any authorized or unauthorized third party, use of the Credentials or the Account. You will ensure that all information in Your Account, including, but not limited to, full name, contact address, and bank account information is up-to-date, complete and accurate. You acknowledge and agree that any remittances owed to You in connection with Your use of the Services may be delayed in the event that Your Account information is not up-to-date, complete and accurate. You may only grant access to Your Account to third parties approved by LoopMe solely to allow such third parties to access and manage Your Account on Your behalf; provided, however, that You shall (i) require that such third parties agree to be bound by the terms of this Agreement; (ii) ensure that such third parties comply fully with all provisions of this Agreement, and (iii) be fully responsible and liable for the acts and omissions of such third parties. Misrepresenting ownership and fraudulent claiming of applications in the LoopMe UI is strictly prohibited and may result in a permanent ban from the Services. You agree that to the extent You create a new Account, it must be pre-approved by LoopMe and registered to You under the same entity or name as your other Account(s); if not pre-approved or registered with the same entity or name, any right to any remittance is automatically waived by You.
- Policies. Use of the Program is subject to all applicable LoopMe ad specification requirements and policies, including without limitation, the LoopMe Program Policies, and the LoopMe Privacy Policy (collectively, the “Policies”), each as which may be updated from time to time by LoopMe.
- Privacy Policy. You must post and abide by a conspicuous and legally adequate privacy policy on each application and/or service of Your Inventory that must disclose the collection of Service Data by third parties such as LoopMe for personalized advertising purposes. You will comply with all applicable laws, rules, and regulations relating to the collection, use and sharing of information about any user who views, is able to view, or interacts with any advertisement in connection with Your Use of any of the Services (“End User(s)”). You must post, and if Your Inventory includes third party apps, then You will contractually require such third parties to post, such privacy policy on all applications in Your Inventory.
- Prohibited Actions. You will not, and will not allow any third party to: (a) use, directly or indirectly access, launch or activate the Program or LoopMe Materials through or from, or otherwise incorporate the Program in, any software application, website or other means other than Your designated sites; (b) transfer, sell, lease, syndicate, sublicense or lend the Program or LoopMe Materials; (c) directly or indirectly generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Program or any LoopMe Materials,; (f) remove, deface, obscure, or alter LoopMe’s proprietary rights notices affixed to or provided as a part of the Program, the LoopMe Protocol, or any other LoopMe Materials (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Program, LoopMe Materials or any other proprietary information related thereto; (h) use any feature or functionality of the Program, or include anything in Your Supply Inventory, that could be used to personally identify or personally track individual end users or any other persons; or (i) engage in any action or practice that reflects poorly on LoopMe or otherwise disparages or devalues LoopMe’s reputation or goodwill. LoopMe may terminate the Program, immediately upon written notice if You breach this Section.
- No Endorsement. You acknowledge and agree that LoopMe is not affiliated with or responsible for any third-party products/services You may choose to manage with the Program. LoopMe reserves the right, but will have no responsibility, to refuse to post or remove any Disclaimed Content, in whole or in part, that in LoopMe, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement. Disclaimed Content means, any part of Your Supply Inventory or Your Inventory that may be considered to contain any hate-related, pornographic, libelous, sexually explicit, violent or otherwise offensive content or contain any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third-party rights or which are reasonably likely to subject LoopMe or its Buyers or business partners to negative publicity. You represent and warrants to LoopMe that the Supply Inventory are legal to distribute, does not and shall not infringe on any third-party intellectual property right (including, without limitation, trademarks, patents, copyrights, rights of publicity, moral rights, or any other third-party right) and does not otherwise violate any applicable law or regulation, including any criminal law.
- Compliance. LoopMe may investigate any activity that may violate this Agreement. If You violate this Agreement or any Policies, LoopMe may in its sole discretion, with a prior notice of forty-eight (48) hours, terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. For any other violations, LoopMe will give you forty eight (48) hour notice period to cure such violations, and if such violation is not cured within the 48 hours of LoopMe sending such notice to You, LoopMe may terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. . LoopMe may refuse to process a request for display of Ads (“Ad Requests”) that are not sent in compliance with the requirements of this Agreement. Further LoopMe shall not be liable for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any LoopMe Materials (or any part thereof).
- Third-Party Terms. You (i) will comply with any third-party terms and conditions applicable to the development and distribution of applications within Your Inventory, including, without limitation, any third-party terms and conditions applicable to Your development and distribution of any part of Your Inventory operating on the Android or iOS mobile operating systems or any other operating system supported by LoopMe now or in the future (collectively, “Third-Party Terms”), and (ii) will not cause LoopMe to be in violation of any such Third-Party Terms.
- Third Party Services. LoopMe may use third party services providers to make certain services available to You, including to view performance metrics. Such third party services may change at any time, in LoopMe’s sole discretion. You are solely responsible for the use and security of any accounts made available by way of such third party services and You are solely responsible for any activities of any person authorized by You to have access to such accounts. LoopMe may also include third party software, as utilized by LoopMe from time to time, in the SDK to support certain features (e.g., viewability, fraud, geo-verification, and other measurement reporting) that may be made available through such third parties’ services, including to You, advertisers, demand side platforms, and other participants in the Program. By integrating the SDK without disabling or removing this third party software, You acknowledge and agree that such third party software provider’s privacy policy, terms of service and SDK license agreement, respectively, as may be updated by such third party from time to time, shall apply to Your integration and use of their software.
- Subject to the terms and conditions of this Agreement, with effect from the Effective Date LoopMe grants You a limited, revocable, non-exclusive, non-transferable license and hence the right during the Term to access and use the Program via the Program Interface and use the LoopMe Materials solely for the purpose of enabling You to receive the benefit of the Program. You will have no right to use, perform, display, reproduce and distribute LoopMe Materials for any other purpose. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by LoopMe or updated in LoopMe website from time to time as made available to you
- You acknowledge that You obtain no rights in the Program, Ads and/ or in any LoopMe Materials or the Intellectual Property Rights in or relating to them or to receive or access the Program save as expressly provided in this Agreement.
- LoopMe Attribution. You agree that LoopMe may include LoopMe brand features or other LoopMe attribution (collectively, “Brand Features”) on any Advertisements transmitted by LoopMe via any Service. You agree that LoopMe may include Brand Features on any webview, website, or other medium displayed to an End User through the LoopMe SDK’s EU Consent Solution.
- Marketing and Publicity. LoopMe shall have the right to and You hereby grant LoopMe a non-exclusive, royalty-free, worldwide, fully paid-up license under all of Your applicable rights to use and display Your name, trademarks, trade names, service marks and/or logos as well as those of the applications in the Publisher Network in customer lists, website listings of customers, presentations, marketing materials, case studies, blog posts and other marketing-related activities.
- This Agreement will be effective as of the date LoopMe activates Your Program account and will continue unless earlier terminated as provided in this Agreement. LoopMe may terminate this Agreement at any given point, with or without cause, and reasonably endeavour to notify you of the same. For any violations by LoopMe of the terms of this Agreement, You will give LoopMe a notice period of forty eight (48) hours to cure such violations, and if such violation is not cured within the 48 hours of You sending such notice to LoopMe, You may terminate this Agreement.
- On termination of the Agreement for any reason:
- i. All licenses granted by LoopMe under this Agreement shall immediately terminate; and
- ii. You shall uninstall or otherwise remove any means of access to the Program provided under the Agreement including client software and any LoopMe SDK or API code supplied by LoopMe for that purpose;
- iii. You shall immediately return any and all of the Confidential Information of LoopMe and any and all of the LoopMe Material provided to You by LoopMe;
- The termination of the Agreement shall be without prejudice to any accrued rights and obligations of the parties arising under the Agreement prior to such termination;
- Any provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination, will continue to be in effect post the termination of this Agreement.
- Data. You acknowledge and agree that LoopMe may, as a result of You accessing the Services, process personal data (as such terms are defined in the applicable Data Protection Legislation) on Your behalf. You further agree that LoopMe may use and access any data obtained hereunder for any such purpose as it deems fit in accordance with applicable law.
- You shall be responsible for ensuring that access and use of Your Supply Inventory by the end users are subject to and governed by a privacy policy appropriately displayed and communicated to the end users by You in accordance with industry standard practices. Such privacy policy shall be in compliance with all applicable data protection and privacy legislations including but not limited to Children’s Online Privacy Protection Act (“COPPA”) and shall also mention use of third party service providers and use of cookies for the purposes of serving Ads.
- Data Protection Legislation means the shall mean (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced); and all other applicable laws and regulations in any jurisdiction in the world relating to the processing of personal data, privacy and online behavioral advertising including, where applicable, the guidance and codes of practice issued by any regulator or end user; and
- You may use Your Data that You receive for Your internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Data, and provided that You have obtained all consents, authorizations and clearances from end users that may be required in connection therewith. “Your Data” means any data belonging to You or to third parties and used by You under license which may be stored and/or processed by LoopMe because of Your use or access of Program. In cases, where LoopMe receives any of Your Data which is stored and/or processed by LoopMe as a result of the use and access of the Program, You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to LoopMe to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision of use of the Program (including the use of the Program by third parties).
- You shall own all rights, title and interest in and to all Your Data and shall be solely responsible for the legality, reliability, integrity, accuracy and quality of Your Data. LoopMe shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
- User Volunteered Data. If You enable the collection and use of any User Volunteered Data via Publisher Ads, You must expressly disclose to such individual End User that such collection is solely on behalf of You or Your Advertisers (and not LoopMe). As between LoopMe and You, User Volunteered Data shall be Your or Your Advertiser’s sole property and confidential information, and shall be subject to You or Your Advertiser’s posted privacy policy. “User Volunteered Data” means any personally identifiable information of End Users collected by You or Your Advertiser via any Advertisements.
- Controller Relationship. You acknowledge that You and LoopMe are each independent controllers of the personal data processed in order to provide the Services and that LoopMe will individually determine the purposes and means of processing described in this Agreement. In no event will the parties process personal data as joint controllers. Each party shall be individually and separately responsible for the obligations that apply to it as a controller with respect to the processing of personal data. LoopMe is the data controller with respect to the processing of any personal data from End Users outside of the United States, including those located in the European Economic Area, the United Kingdom, and Switzerland.
- EU Consent Solution. If You would like to serve personalized advertising to End Users in the European Economic Area, the United Kingdom, and Switzerland, You will use a solution to obtain consent from such end users in a manner compliant to applicable laws. You will not alter or modify the consent solution or otherwise attempt to fraudulently pass consent on behalf of the End User.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE ADVERTISEMENTS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- NEITHER PARTY AND ITS WHOLLY OWNED SUBSIDIARIES WILL NOT BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE PROGRAM), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF LOOPME AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE AGGREGATE LIABILITY OF LOOPME FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER THAT LIABILITY ARISES) SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES UP TO $500.
- You represent and warrant that: (a) You have and will maintain throughout the Program Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Your Supply Inventory, to display Ads on the Supply Inventory, and to permit LoopMe to perform the services contemplated under this Agreement; (c) all of the information provided by You to LoopMe to enroll in the Program is correct and current at all times; (d) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (e) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003, COPPA Act and any other relevant laws in the Data Protection Legislation for Your performance of any acts hereunder; (f) You comply with and have any and all consents, authorizations and clearances from end users of the Supply Inventory to allow LoopMe to collect and use the Data in accordance with Section 7(a), and as may be required for LoopMe to provide services hereunder; (g) You will at all times comply with LoopMe Policies as available at www.loopme.com.
- The parties shall at all times comply with the Children’s Online Privacy Protection Act (“COPPA”) while performing its obligations of this Agreement. LoopMe shall therefore not use or allow use of: (a) behavorial targeted ads to users under 13; (b) creation profiles of users under 13 or (c) collection of personal information from users under 13 You shall therefore not use or allow use of: (a) games or applications directed to users under 13 in the Supply Inventory; (b) creation profiles of users under 13 or (c) collection of personal information from users under 13.
- Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under, this Contract to any third party without the prior written consent of LoopMe (which may be delayed or withheld in its discretion).
- Assignment and Subcontracting by LoopMe: LoopMe shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
- No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
- Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
- Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract. In the event of any conflict between this Agreement and any written agreement(s) between LoopMe and You, which have been signed by both parties after the effective date of this Agreement, regarding any Service, the terms of the written agreement(s) will take precedence over the specific terms of this Agreement with respect to such conflict.
- Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). LoopMe shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond LoopMe’s reasonable control.
- Amendments: LoopMe reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by LoopMe, You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Contract by notice in writing to LoopMe. In the event of such termination, clause 12 above shall apply.
- Notices: LoopMe may notify You for any purpose under this Agreement via a) registered or certified mail, postage prepaid, return receipt requested, (b) private courier service, or (c) facsimile addressed to the respective addresses of the parties as first above written or at such other addresses as LoopMe may designate by like notice from time to time, including via email.
- Independent Contractors. LoopMe and You are not legal partners or agents, but are independent contractors, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- This Agreement and any dispute or claim arising in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
- The Parties irrevocably agree that the courts situated at London, England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or it’s subject matter or formation (including non-contractual disputes or claims).
Effective February 18, 2020 to February 18, 2020
DownloadTable of Contents
- The Program allows You to monetize Your Supply Inventory by paying you a CPM price for the viewable impressions displayed by LoopMe for LoopMe buyers. If You are accepted as a publisher in the Program and where Ads are successfully displayed on the Supply Inventory, LoopMe will pay You such amount as reflected on and on the basis of the LoopMe dashboard which You will have access to and be provided with once you register with LoopMe. For the sake of clarity, Your Supply Inventory shall not include any apps that do not feature on the Google Play Store or the Apple App Store. LoopMe shall not be liable to pay for any traffic from apps that are not part of either the Play Store or App Store.
- You shall be responsible for raising a valid invoice within five (5) working days of the end of the applicable month of active promotions under Your account and emailing the invoice to finance@loopme.com. LoopMe will pay all undisputed Fees as stated on the invoice within 60 days from the receipt of such invoice. If there are any disputed amounts, both parties shall negotiate in good faith to resolve them. No payments will be issued for any amount less than $100 (USD) and any unpaid earnings will rollover and be charged on the next invoice (such amounts shall be noted on the face of the invoice for prior periods).
- The Parties agree that LoopMe’s obligation to pay amounts invoiced hereunder shall be subject to LoopMe’s receipt of funds from the applicable Buyer. LoopMe shall use reasonable endeavours to collect all monies due to LoopMe.
- From time to time LoopMe will run promotions for new customers to help them gain better value out of LoopMe and to encourage new publishers. You are responsible for the promo code being entered. LoopMe is under no obligation to enter it for you. If it is not entered, LoopMe will not pay You the amount the offer is valid for.
- Subject to invoice approval. LoopMe will pay invoices as noted above. Payments can be made in US dollars ($US), £ Sterling or Euros only. We shall send payment to you via wire transfer / BAC’s transfer. Our only liability is to send payment using the bank details provided by You and we shall have no liability for lost payments as a result of details being incorrectly entered by You. LoopMe shall not be liable for any bank charges attributable to the transfer, and shall be entitled to set off the same against the invoice as raised by You.
- LoopMe reserves the right to discontinue the Program, withhold payment at any time, and/or terminate any agreement with You, without liability to You, if LoopMe reasonably suspects that any of the following have occurred on Your Supply Inventory: (i) any form of Fraudulent Activity or illegal practices, or (ii) any type of activity, text, image, or use that may violate applicable laws or is reasonably likely to have a negative commercial impact on LoopMe, its advertisers or business partners. Without limitation to the foregoing, LoopMe may, at its sole discretion, credit back to advertisers and/or offset against future payments to You any payments which it subsequently determines accrued as a result of such Fraudulent activity or illegal activity. The term “Fraudulent Activity” for the purposes of this Agreement means, Fraudulent Activity includes without limitation, any activities by You that authorize or encourage any third party to: (1) generate impressions of or clicks on any Ad(s) through any automated, deceptive, fraudulent or other invalid means, including but not limited to repeated manual clicks and automated query tools; (2) mislead users to click on Ad(s); (3) in any way minimize or obstruct the display of any Ad(s); or edit, modify, filter or change the order of the information contained in any Advertisements; (4) attempt to edit the website tags, source codes, links, pixels, modules, software development kits or other data provided by LoopMe; (5) fraudulent passing off, including but not limited to spoofing the unique identifier of the ad spot which could be a url or an app name; (6) providing inventory that is not as agreed with LoopMe, including but not limited to providing inventory which is of lesser quality; or (7) reverse engineer, decompile or disassemble any software components of the advertising services provided by LoopMe.LoopMe may at its sole discretion seek liquidated damages not exceeding 50% of the amount payable to you under the Program for any breach of this Section II (f).
- Taxes: All payments are inclusive of taxes. Excluding any taxes on the income of a party, any taxes, including but not limited to sales, GST, VAT, excise, service tax, or such other transaction taxes, applicable in connection with this Agreement shall be borne and remitted by You to the relevant tax authorities. In case applicable laws require withholding of any amount on account of withholding taxes, LoopMe may withhold such amounts, unless You provides a certificate of exemption from such withholding taxes. Amounts payable to You shall not be grossed up on account of withholding taxes. Further LoopMe and You shall co-operate to enable each party to more accurately determine the respective tax liability and to minimize such liability, to the extent legally permissible.
- You will implement the Program in a manner that complies with the technical and implementation requirements provided by LoopMe from time to time, which may include integration or distribution of software, implementation of APIs or SDKs, complying with protocols and any other instructions contained in the LoopMe documentation (collectively, the “Protocol”). LoopMe will provide reasonable support and cooperation to You through the implementation process. All the materials provided to You by LoopMe (including the Protocol, APIs or SDKs or Ads in relation to this Agreement (LoopMe Materials) are the property of LoopMe and is sub-licensed to You for the performance of the respective obligations of the Parties under this Agreement. It is Your responsibility to ensure that You have appropriate protection for Your computers, software, data and applications including any systems that You use to access the Services or any LoopMe Materials and that LoopMe shall have no responsibility for any computer viruses, worms, software bombs, bugs or similar items that affect Your computers, computer systems, software, infrastructure or data as a result of Your access of the Services or use of the LoopMe Materials.
- Content. You are solely responsible for Your Inventory and all aspects of Your Supply Inventory (including content and subject matter, editorial, text, graphic, audiovisual, and other content and any other information) and/ or the activities of any third parties within Your Inventory.
- Your Account. You will protect any Program accounts You use to access any of the Services (each, an “Account”) and any usernames, passwords, verification codes, and any other account access or authentication information associated with the Account (“Credentials”) against any unauthorized access and use, and will take full responsibility for Your own, and any authorized or unauthorized third party, use of the Credentials or the Account. You will ensure that all information in Your Account, including, but not limited to, full name, contact address, and bank account information is up-to-date, complete and accurate. You acknowledge and agree that any remittances owed to You in connection with Your use of the Services may be delayed in the event that Your Account information is not up-to-date, complete and accurate. You may only grant access to Your Account to third parties approved by LoopMe solely to allow such third parties to access and manage Your Account on Your behalf; provided, however, that You shall (i) require that such third parties agree to be bound by the terms of this Agreement; (ii) ensure that such third parties comply fully with all provisions of this Agreement, and (iii) be fully responsible and liable for the acts and omissions of such third parties. Misrepresenting ownership and fraudulent claiming of applications in the LoopMe UI is strictly prohibited and may result in a permanent ban from the Services. You agree that to the extent You create a new Account, it must be pre-approved by LoopMe and registered to You under the same entity or name as your other Account(s); if not pre-approved or registered with the same entity or name, any right to any remittance is automatically waived by You.
- Policies. Use of the Program is subject to all applicable LoopMe ad specification requirements and policies, including without limitation, the LoopMe Program Policies, and the LoopMe Privacy Policy (collectively, the “Policies”), each as which may be updated from time to time by LoopMe.
- Privacy Policy. You must post and abide by a conspicuous and legally adequate privacy policy on each application and/or service of Your Inventory that must disclose the collection of Service Data by third parties such as LoopMe for personalized advertising purposes. You will comply with all applicable laws, rules, and regulations relating to the collection, use and sharing of information about any user who views, is able to view, or interacts with any advertisement in connection with Your Use of any of the Services (“End User(s)”). You must post, and if Your Inventory includes third party apps, then You will contractually require such third parties to post, such privacy policy on all applications in Your Inventory.
- Prohibited Actions. You will not, and will not allow any third party to: (a) use, directly or indirectly access, launch or activate the Program or LoopMe Materials through or from, or otherwise incorporate the Program in, any software application, website or other means other than Your designated sites; (b) transfer, sell, lease, syndicate, sublicense or lend the Program or LoopMe Materials; (c) directly or indirectly generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means (including, but not limited to, click spam, robots, macro programs, and Internet agents); (d) encourage or require end users or any other persons, either with or without their knowledge, to click on ads, including without limitation Ads, through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent; (e) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Program or any LoopMe Materials,; (f) remove, deface, obscure, or alter LoopMe’s proprietary rights notices affixed to or provided as a part of the Program, the LoopMe Protocol, or any other LoopMe Materials (g) create or attempt to create a substitute or similar service or product through use of or access to any of the Program, LoopMe Materials or any other proprietary information related thereto; (h) use any feature or functionality of the Program, or include anything in Your Supply Inventory, that could be used to personally identify or personally track individual end users or any other persons; or (i) engage in any action or practice that reflects poorly on LoopMe or otherwise disparages or devalues LoopMe’s reputation or goodwill. LoopMe may terminate the Program, immediately upon written notice if You breach this Section.
- No Endorsement. You acknowledge and agree that LoopMe is not affiliated with or responsible for any third-party products/services You may choose to manage with the Program. LoopMe reserves the right, but will have no responsibility, to refuse to post or remove any Disclaimed Content, in whole or in part, that in LoopMe, in its sole and absolute discretion, deems is objectionable, erroneous, illegal, fraudulent or otherwise in violation of this Agreement. Disclaimed Content means, any part of Your Supply Inventory or Your Inventory that may be considered to contain any hate-related, pornographic, libelous, sexually explicit, violent or otherwise offensive content or contain any other material, products or services that violate or encourage conduct that would violate any applicable laws, or any third-party rights or which are reasonably likely to subject LoopMe or its Buyers or business partners to negative publicity. You represent and warrants to LoopMe that the Supply Inventory are legal to distribute, does not and shall not infringe on any third-party intellectual property right (including, without limitation, trademarks, patents, copyrights, rights of publicity, moral rights, or any other third-party right) and does not otherwise violate any applicable law or regulation, including any criminal law.
- Compliance. LoopMe may investigate any activity that may violate this Agreement. If You violate this Agreement or any Policies, LoopMe may in its sole discretion, with a prior notice of forty-eight (48) hours, terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. For any other violations, LoopMe will give you forty eight (48) hour notice period to cure such violations, and if such violation is not cured within the 48 hours of LoopMe sending such notice to You, LoopMe may terminate this Agreement, or suspend or terminate the participation of Your Program Site in all or part of the Program. . LoopMe may refuse to process a request for display of Ads (“Ad Requests”) that are not sent in compliance with the requirements of this Agreement. Further LoopMe shall not be liable for any loss or damage You may suffer or incur as a result of the suspension of Your access to the Services (or any part thereof) and/or any LoopMe Materials (or any part thereof).
- Third-Party Terms. You (i) will comply with any third-party terms and conditions applicable to the development and distribution of applications within Your Inventory, including, without limitation, any third-party terms and conditions applicable to Your development and distribution of any part of Your Inventory operating on the Android or iOS mobile operating systems or any other operating system supported by LoopMe now or in the future (collectively, “Third-Party Terms”), and (ii) will not cause LoopMe to be in violation of any such Third-Party Terms.
- Third Party Services. LoopMe may use third party services providers to make certain services available to You, including to view performance metrics. Such third party services may change at any time, in LoopMe’s sole discretion. You are solely responsible for the use and security of any accounts made available by way of such third party services and You are solely responsible for any activities of any person authorized by You to have access to such accounts. LoopMe may also include third party software, as utilized by LoopMe from time to time, in the SDK to support certain features (e.g., viewability, fraud, geo-verification, and other measurement reporting) that may be made available through such third parties’ services, including to You, advertisers, demand side platforms, and other participants in the Program. By integrating the SDK without disabling or removing this third party software, You acknowledge and agree that such third party software provider’s privacy policy, terms of service and SDK license agreement, respectively, as may be updated by such third party from time to time, shall apply to Your integration and use of their software.
- Subject to the terms and conditions of this Agreement, with effect from the Effective Date LoopMe grants You a limited, revocable, non-exclusive, non-transferable license and hence the right during the Term to access and use the Program via the Program Interface and use the LoopMe Materials solely for the purpose of enabling You to receive the benefit of the Program. You will have no right to use, perform, display, reproduce and distribute LoopMe Materials for any other purpose. You shall comply with any and all reasonable instructions, conditions and security requirements in respect thereof as shall from time to time be notified in writing to You by LoopMe or updated in LoopMe website from time to time as made available to you
- You acknowledge that You obtain no rights in the Program, Ads and/ or in any LoopMe Materials or the Intellectual Property Rights in or relating to them or to receive or access the Program save as expressly provided in this Agreement.
- LoopMe Attribution. You agree that LoopMe may include LoopMe brand features or other LoopMe attribution (collectively, “Brand Features”) on any Advertisements transmitted by LoopMe via any Service. You agree that LoopMe may include Brand Features on any webview, website, or other medium displayed to an End User through the LoopMe SDK’s EU Consent Solution.
- Marketing and Publicity. LoopMe shall have the right to and You hereby grant LoopMe a non-exclusive, royalty-free, worldwide, fully paid-up license under all of Your applicable rights to use and display Your name, trademarks, trade names, service marks and/or logos as well as those of the applications in the Publisher Network in customer lists, website listings of customers, presentations, marketing materials, case studies, blog posts and other marketing-related activities.
- This Agreement will be effective as of the date LoopMe activates Your Program account and will continue unless earlier terminated as provided in this Agreement. LoopMe may terminate this Agreement at any given point, with or without cause, and reasonably endeavour to notify you of the same. For any violations by LoopMe of the terms of this Agreement, You will give LoopMe a notice period of forty eight (48) hours to cure such violations, and if such violation is not cured within the 48 hours of You sending such notice to LoopMe, You may terminate this Agreement.
- On termination of the Agreement for any reason:
- i. All licenses granted by LoopMe under this Agreement shall immediately terminate; and
- ii. You shall uninstall or otherwise remove any means of access to the Program provided under the Agreement including client software and any LoopMe SDK or API code supplied by LoopMe for that purpose;
- iii. You shall immediately return any and all of the Confidential Information of LoopMe and any and all of the LoopMe Material provided to You by LoopMe;
- The termination of the Agreement shall be without prejudice to any accrued rights and obligations of the parties arising under the Agreement prior to such termination;
- Any provision which expressly or by implication is intended to come into effect on, or to continue in effect after such expiry or termination, will continue to be in effect post the termination of this Agreement.
- Data. You acknowledge and agree that LoopMe may, as a result of You accessing the Services, process personal data (as such terms are defined in the applicable Data Protection Legislation) on Your behalf. You further agree that LoopMe may use and access any data obtained hereunder for any such purpose as it deems fit in accordance with applicable law.
- You shall be responsible for ensuring that access and use of Your Supply Inventory by the end users are subject to and governed by a privacy policy appropriately displayed and communicated to the end users by You in accordance with industry standard practices. Such privacy policy shall be in compliance with all applicable data protection and privacy legislations including but not limited to Children’s Online Privacy Protection Act (“COPPA”) and shall also mention use of third party service providers and use of cookies for the purposes of serving Ads.
- Data Protection Legislation means the shall mean (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data (“Directive”) and on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (“GDPR”); and (ii) Directive 2002/58/EC concerning the processing of Personal Data and the protection of privacy in the electronic communications sector and applicable national implementations of it (as may be amended, superseded or replaced); and all other applicable laws and regulations in any jurisdiction in the world relating to the processing of personal data, privacy and online behavioral advertising including, where applicable, the guidance and codes of practice issued by any regulator or end user; and
- You may use Your Data that You receive for Your internal business purposes so long as such use is in compliance with all applicable privacy policies, laws, rules, regulations and industry self-regulatory regimes relating to the collection, use and disclosure of Data, and provided that You have obtained all consents, authorizations and clearances from end users that may be required in connection therewith. “Your Data” means any data belonging to You or to third parties and used by You under license which may be stored and/or processed by LoopMe because of Your use or access of Program. In cases, where LoopMe receives any of Your Data which is stored and/or processed by LoopMe as a result of the use and access of the Program, You hereby grant a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to LoopMe to use, copy, modify, amend and create derivative works of Your Data for any purpose connected with the provision of use of the Program (including the use of the Program by third parties).
- You shall own all rights, title and interest in and to all Your Data and shall be solely responsible for the legality, reliability, integrity, accuracy and quality of Your Data. LoopMe shall have no liability to You in the event that Your Data is lost, corrupted or inaccessible (either temporarily or permanently).
- User Volunteered Data. If You enable the collection and use of any User Volunteered Data via Publisher Ads, You must expressly disclose to such individual End User that such collection is solely on behalf of You or Your Advertisers (and not LoopMe). As between LoopMe and You, User Volunteered Data shall be Your or Your Advertiser’s sole property and confidential information, and shall be subject to You or Your Advertiser’s posted privacy policy. “User Volunteered Data” means any personally identifiable information of End Users collected by You or Your Advertiser via any Advertisements.
- Controller Relationship. You acknowledge that You and LoopMe are each independent controllers of the personal data processed in order to provide the Services and that LoopMe will individually determine the purposes and means of processing described in this Agreement. In no event will the parties process personal data as joint controllers. Each party shall be individually and separately responsible for the obligations that apply to it as a controller with respect to the processing of personal data. LoopMe is the data controller with respect to the processing of any personal data from End Users outside of the United States, including those located in the European Economic Area, the United Kingdom, and Switzerland.
- EU Consent Solution. If You would like to serve personalized advertising to End Users in the European Economic Area, the United Kingdom, and Switzerland, You will use a solution to obtain consent from such end users in a manner compliant to applicable laws. You will not alter or modify the consent solution or otherwise attempt to fraudulently pass consent on behalf of the End User.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PARTIES HEREBY SPECIFICALLY DISCLAIM ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTIES, OR WARRANTIES, EXPRESS OR IMPLIED, RELATED TO THE ADVERTISEMENTS INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- NEITHER PARTY AND ITS WHOLLY OWNED SUBSIDIARIES WILL NOT BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE PROGRAM), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF LOOPME AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE AGGREGATE LIABILITY OF LOOPME FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (HOWEVER THAT LIABILITY ARISES) SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES UP TO $500.
- You represent and warrant that: (a) You have and will maintain throughout the Program Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to Your Supply Inventory, to display Ads on the Supply Inventory, and to permit LoopMe to perform the services contemplated under this Agreement; (c) all of the information provided by You to LoopMe to enroll in the Program is correct and current at all times; (d) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (e) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003, COPPA Act and any other relevant laws in the Data Protection Legislation for Your performance of any acts hereunder; (f) You comply with and have any and all consents, authorizations and clearances from end users of the Supply Inventory to allow LoopMe to collect and use the Data in accordance with Section 7(a), and as may be required for LoopMe to provide services hereunder; (g) You will at all times comply with LoopMe Policies as available at www.loopme.com.
- The parties shall at all times comply with the Children’s Online Privacy Protection Act (“COPPA”) while performing its obligations of this Agreement. LoopMe shall therefore not use or allow use of: (a) behavorial targeted ads to users under 13; (b) creation profiles of users under 13 or (c) collection of personal information from users under 13 You shall therefore not use or allow use of: (a) games or applications directed to users under 13 in the Supply Inventory; (b) creation profiles of users under 13 or (c) collection of personal information from users under 13.
- Assignment and Subcontracting by You: You may not assign the benefit of, or obligations under, this Contract to any third party without the prior written consent of LoopMe (which may be delayed or withheld in its discretion).
- Assignment and Subcontracting by LoopMe: LoopMe shall be entitled freely to assign or subcontract any of its rights or obligations under this Contract.
- No Waiver: The failure of either Party to enforce its rights under this Contract at any time for any period shall not be construed as a waiver of such rights.
- Severability: If any provision of this Contract is held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of this Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of this Contract in any other jurisdiction shall not be affected.
- Entire Agreement: This Contract constitute the entire agreement between the parties and supersedes all prior agreements and arrangements (if any) whether written, oral or implied between the Parties relating to the subject matter of this Contract. In the event of any conflict between this Agreement and any written agreement(s) between LoopMe and You, which have been signed by both parties after the effective date of this Agreement, regarding any Service, the terms of the written agreement(s) will take precedence over the specific terms of this Agreement with respect to such conflict.
- Force Majeure: Neither Party shall be responsible for any delay or failure in performance of any part of this Contract to the extent that such delay is caused by reason of acts of God, wars, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control of the delayed Party (“Force Majeure Event”). LoopMe shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond LoopMe’s reasonable control.
- Amendments: LoopMe reserves the right to amend these Conditions at any time on prior written notice to You without incurring any liability to You. All amendments shall take effect immediately on written notice to You. In the event that You object to any amendment to these Conditions made by LoopMe, You shall be entitled, during the period of 14 days following notice of the amendment, to terminate this Contract by notice in writing to LoopMe. In the event of such termination, clause 12 above shall apply.
- Notices: LoopMe may notify You for any purpose under this Agreement via a) registered or certified mail, postage prepaid, return receipt requested, (b) private courier service, or (c) facsimile addressed to the respective addresses of the parties as first above written or at such other addresses as LoopMe may designate by like notice from time to time, including via email.
- Independent Contractors. LoopMe and You are not legal partners or agents, but are independent contractors, and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
- This Agreement and any dispute or claim arising in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
- The Parties irrevocably agree that the courts situated at London, England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or it’s subject matter or formation (including non-contractual disputes or claims).
Advertiser Terms & Conditions
Effective March 22, 2023
DownloadTable of Contents
Definitions
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
- IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected. Excluding Advertising Materials provided by Advertiser, Media Company shall own and retain all right, title and interest in any materials and content it creates for the media buy pursuant to the IO. Advertiser agrees that it shall not at any time assert or claim any interest in, or do anything that may adversely affect the validity or enforceability of, any intellectual property or other proprietary right belonging to Media Company hereunder.
- Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of
- (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
- Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
- Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will use commercially reasonable efforts to create a reasonably balanced delivery schedule; provided that, Advertiser and Agency acknowledge that given the nature of Media Company’s business impressions on Sites may vary at times. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Agency in writing.
- Changes to Site. Media Company will use commercially reasonable efforts to provide Agency at least 10 business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Agency’s and Advertiser’s sole remedy for such change, Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Agency may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
- Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already- purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company’s cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
- Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Media Company Properties, although Media Company will at all times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company and Agency agree that Media Company’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Agency with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Media Company remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Agency for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Agency and Media Company will negotiate an alternate solution. After Agency notifies Media Company that specific Ads are in violation of the Editorial Adjacency Guidelines, Media Company will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Agency and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Advertiser’s and Agency’s sole remedy for Media Company’s breach of such obligation will be to submit written complaints to Media Company, which will review such complaints and remove user-generated content that Media Company, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.
- Invoices. The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an initial invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. If Media Company sends the initial invoice after the 90-day period and the Agency either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, Agency will use commercially reasonable efforts to assist Media Company in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds. Any failure by Agency to invoice the Advertiser within this time frame shall not in any way limit Media Company’s ability to collect funds from the Advertiser.Any bank charges applicable to the payments made hereunder shall be borne by the Advertiser and/ or Agency, and the Media Company shall not be liable for the same. In no event will the Advertiser and/ or Agency set off any amounts (including but not limited to any bank charges) against the invoice payable to the Media Company.Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided with the net cost (i.e., the cost after subtracting any applicable discounts and commissions, including but not limited to Agency commissions, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
- Payment Date. Order acceptance is subject to credit approval of Advertiser and/or Agency; Advertiser and Agency shall provide information reasonably requested by Media Company to evaluate such entity’s credit and Media Company reserves the right to cancel credit at any time for any reason in its sole discretion, with or without notice. Provided credit is approved, payment is due thirty (30) days from invoice date, unless otherwise agreed in writing by Media Company. Media Company may notify Agency that it has not received payment in such 30- day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice. In the event of non-payment, and without limiting any other remedies, Media Company may offset any amounts due to Media Company against any amounts due from Media Company to Advertiser (or Agency on its behalf) under any agreement or IO, or may offset such amounts against any charges for media to be delivered by Media Company.
- Payment Liability. Media Company may hold Agency liable for payments due by Advertiser, as the disclosed agent of the Advertiser, in the event of non-payment by Advertiser for Ads placed in accordance with the terms of the IO. Agency agrees that Media Company may hold Agency liable for payments in the event that proceeds have not cleared from Advertiser for Ads placed in accordance with the IO. Advertiser shall keep records related to payments made by it to Agency with respect to services provided by Media Company under this Agreement and Agency shall keep records related to payments received by it from Advertiser with respect to services provided by Media Company under this Agreement, and upon reasonable notice from Media Company, Advertiser and Agency shall allow Media Company to review such records. Unless otherwise set forth by the Media Company in the IO, a 2% per month (pro-rated for part thereof) penal interest on late payments shall be levied from the date of receipt of an invoice by the Media Company.Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.Agency’s credit is established on a client-by-client basis.If Advertiser proceeds have not cleared for the IO, other advertisers from Agency will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question. Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO. If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.
- Payment Recovery Costs. Pursuant to Section III(b) above, in the event that Media Company is required to seek payment directly from Advertiser, Media Company may impose additional costs on Advertiser in relation to the IO associated with the recovery of the outstanding payment (i.e., the reasonable costs of debt recovery companies instructed to recover the payments).
- Media Company Reporting. If Media Company is serving the campaign, Media Company may make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).Once Media Company has provided the online or electronic report, if applicable, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Media Company’s invoice for such period.
- Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
(8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables. - ii. With seven (7) days’ prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
- iii. With 30 days’ prior written notice to Media Company, without penalty, for any flat fee- based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
- iv. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
- For Cause. Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
- Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon as possible if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent with these Terms.
- Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Agency or Advertiser has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Agency and/or Advertiser is reasonably current on all amounts owed to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
- Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
- Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms 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 event”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
- Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
- Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder of the IO without penalty.
- Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies. Media Company’s sole remedies for a breach of this provision are set forth in Section V(b), above, Sections IX (c) and (d), below, and Sections X (b) and (c), below.
- Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.
- Compliance. Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Media Company or any of its Affiliates (as defined below), provided that if Media Company has reviewed and approved such Ads prior to their use on the Site, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.
- Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials. 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).
- No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
- Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. All use of Third Party Ad Server tags shall comply with Media Company’s Policies including, without limitation, policies regarding use of tags, cookies and any other technology now known or hereafter developed that is designed to track users’ online behavior or activity as supplied by Media Company from time to time.
- Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
- Policies. For the purposes of Section X(b), Agency agrees that new and/or amended Policies posted by Media Company from time to time on the LoopMe website shall satisfy the requirement to provide prior notice of such Policies to Agency.
- By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any allegations, actions, causes of action, obligations, demands, threatened claims and claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Media Company’s alleged breach of Section XII or of Media Company’s representations and warranties in Section XIV(a), or (ii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene.
- Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
- By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) 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. Advertiser shall further indemnify Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (1) Ads and Advertising Materials provided by Advertiser or Agency to Media Company and posted on a Site, (2) Media Company’s use of any content or technology other than an Ad or Advertising Materials that Advertiser or Agency require Media Company to use, (3) the pages and sites to which an Ad or Advertising Materials link, and (4) use of any products sold through an Ad or Advertising Materials or through pages or sites to which they link.
- By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency- specific obligations under Section XII.
- Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
- Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section IX, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
- Except in connection with the indemnification obligation under Section IX(a), Media Company’s (including all companies whose sites and properties are included as part of the Ad Network (“Participating Companies”) liability to Advertiser from all causes of action and all theories of liability will be limited to direct damages only and will not, in the aggregate, exceed the fees actually received by Media Company in connection with the IO to which such claims relate. Participating Companies shall be deemed third party beneficiaries of Advertiser’s obligations here under including Advertiser’s indemnity obligations.
- Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party 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. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
- Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
- Additional Definitions. As used herein the following terms shall have the following definitions:
- i. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
- ii. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
- iii. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
- iv. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
- v. “Collected Data” consists of IO Details, Performance Data, and Site Data.
- vi. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
- vii. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
- Use of Collected Data.
- i. Notwithstanding anything to the contrary contained in this Agreement, any data (including, without limitation, User Volunteered Data, Performance Data and Site Data) collected and used by Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) is subject to Media Company’s prior written approval. Without limiting the foregoing, unless otherwise authorized by Media Company in advance in writing, Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) may collect and use Collected Data solely for the purpose of performing under the IO and may not collect or use it for any other purpose (including, without limitation, to target or retarget advertisements). Upon reasonable advance notice, Media Company may review documents in the possession of Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) solely for the purpose of verifying compliance with the foregoing and Advertiser shall ensure Media Company has reasonable access to all such documents for such purpose . In addition, unless otherwise authorized by Media Company in advance in writing, neither Advertiser nor Agency will (A) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party (including, without limitation, Third Party Ad Servers) except as set forth in Section XII(d)(iii).”
- ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO. Media Company may use Collected Data in an Aggregated form generated or collected in connection with the IO (collectively “Permitted Data”) for reporting purposes, optimizing network performance, and other legitimate business purposes of Media Company, on the basis that the Permitted Data does not identify Advertiser and is not used to target based upon Advertiser’s identity.”
- iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the IO and signed by both parties. Where User Collected Data constitutes data previously collected by Media Company in connection with user registrations on a Site, Media Company and Advertiser shall each own such data separately and shall use it in accordance with their respective privacy policy.
- Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
- Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
- Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
- Ad Serving and Tracking. Media Company will track delivery through its ad server and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company’s prior written consent.
- Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:
- i. Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).
- ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non- proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XIII(c), below.
- iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Media Company’s ad server, unless otherwise agreed by Agency and Media Company in writing.
- Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary. Nothing in this Section XIII(c) shall limit, replace or nullify any other obligation set forth in this Agreement (including this Addendum).
- Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency reserves the right to either:
- i. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Agency and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
- ii. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
- Measurement Methodology. Media Company will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
- Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, 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 Media Company to serve Ads until the Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company’s own advertisements or advertisements provided by a Third Party.
- Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Agency.
- Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
- Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
- Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. Each IO may be executed by electronic signature and exchanged by email in scanned or pdf format.
- Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of England and Wales. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely before the courts in London, England and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
- Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
- Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
- Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
Effective March 21, 2023 to March 22, 2023
DownloadTable of Contents
Definitions
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
- IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected. Excluding Advertising Materials provided by Advertiser, Media Company shall own and retain all right, title and interest in any materials and content it creates for the media buy pursuant to the IO. Advertiser agrees that it shall not at any time assert or claim any interest in, or do anything that may adversely affect the validity or enforceability of, any intellectual property or other proprietary right belonging to Media Company hereunder.
- Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of
- (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
- Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
- Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will use commercially reasonable efforts to create a reasonably balanced delivery schedule; provided that, Advertiser and Agency acknowledge that given the nature of Media Company’s business impressions on Sites may vary at times. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Agency in writing.
- Changes to Site. Media Company will use commercially reasonable efforts to provide Agency at least 10 business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Agency’s and Advertiser’s sole remedy for such change, Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Agency may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
- Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already- purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company’s cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
- Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Media Company Properties, although Media Company will at all times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company and Agency agree that Media Company’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Agency with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Media Company remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Agency for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Agency and Media Company will negotiate an alternate solution. After Agency notifies Media Company that specific Ads are in violation of the Editorial Adjacency Guidelines, Media Company will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Agency and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Advertiser’s and Agency’s sole remedy for Media Company’s breach of such obligation will be to submit written complaints to Media Company, which will review such complaints and remove user-generated content that Media Company, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.
- Invoices. The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an initial invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. If Media Company sends the initial invoice after the 90-day period and the Agency either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, Agency will use commercially reasonable efforts to assist Media Company in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds. Any failure by Agency to invoice the Advertiser within this time frame shall not in any way limit Media Company’s ability to collect funds from the Advertiser.Any bank charges applicable to the payments made hereunder shall be borne by the Advertiser and/ or Agency, and the Media Company shall not be liable for the same. In no event will the Advertiser and/ or Agency set off any amounts (including but not limited to any bank charges) against the invoice payable to the Media Company.Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided with the net cost (i.e., the cost after subtracting any applicable discounts and commissions, including but not limited to Agency commissions, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
- Payment Date. Order acceptance is subject to credit approval of Advertiser and/or Agency; Advertiser and Agency shall provide information reasonably requested by Media Company to evaluate such entity’s credit and Media Company reserves the right to cancel credit at any time for any reason in its sole discretion, with or without notice. Provided credit is approved, payment is due thirty (30) days from invoice date, unless otherwise agreed in writing by Media Company. Media Company may notify Agency that it has not received payment in such 30- day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice. In the event of non-payment, and without limiting any other remedies, Media Company may offset any amounts due to Media Company against any amounts due from Media Company to Advertiser (or Agency on its behalf) under any agreement or IO, or may offset such amounts against any charges for media to be delivered by Media Company.
- Payment Liability. Media Company may hold Agency liable for payments due by Advertiser, as the disclosed agent of the Advertiser, in the event of non-payment by Advertiser for Ads placed in accordance with the terms of the IO. Agency agrees that Media Company may hold Agency liable for payments in the event that proceeds have not cleared from Advertiser for Ads placed in accordance with the IO. Advertiser shall keep records related to payments made by it to Agency with respect to services provided by Media Company under this Agreement and Agency shall keep records related to payments received by it from Advertiser with respect to services provided by Media Company under this Agreement, and upon reasonable notice from Media Company, Advertiser and Agency shall allow Media Company to review such records. Unless otherwise set forth by the Media Company in the IO, a 2% per month (pro-rated for part thereof) penal interest on late payments shall be levied from the date of receipt of an invoice by the Media Company.Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.Agency’s credit is established on a client-by-client basis.If Advertiser proceeds have not cleared for the IO, other advertisers from Agency will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question. Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO. If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.
- Payment Recovery Costs. Pursuant to Section III(b) above, in the event that Media Company is required to seek payment directly from Advertiser, Media Company may impose additional costs on Advertiser in relation to the IO associated with the recovery of the outstanding payment (i.e., the reasonable costs of debt recovery companies instructed to recover the payments).
- Media Company Reporting. If Media Company is serving the campaign, Media Company may make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).Once Media Company has provided the online or electronic report, if applicable, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Media Company’s invoice for such period.
- Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
(8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables. - ii. With seven (7) days’ prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
- iii. With 30 days’ prior written notice to Media Company, without penalty, for any flat fee- based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
- iv. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
- For Cause. Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
- Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon as possible if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent with these Terms.
- Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Agency or Advertiser has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Agency and/or Advertiser is reasonably current on all amounts owed to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
- Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
- Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms 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 event”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
- Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
- Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder of the IO without penalty.
- Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies. Media Company’s sole remedies for a breach of this provision are set forth in Section V(b), above, Sections IX (c) and (d), below, and Sections X (b) and (c), below.
- Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.
- Compliance. Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Media Company or any of its Affiliates (as defined below), provided that if Media Company has reviewed and approved such Ads prior to their use on the Site, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.
- Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials. 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).
- No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
- Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. All use of Third Party Ad Server tags shall comply with Media Company’s Policies including, without limitation, policies regarding use of tags, cookies and any other technology now known or hereafter developed that is designed to track users’ online behavior or activity as supplied by Media Company from time to time.
- Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
- Policies. For the purposes of Section X(b), Agency agrees that new and/or amended Policies posted by Media Company from time to time on the LoopMe website shall satisfy the requirement to provide prior notice of such Policies to Agency.
- By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any allegations, actions, causes of action, obligations, demands, threatened claims and claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Media Company’s alleged breach of Section XII or of Media Company’s representations and warranties in Section XIV(a), or (ii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene.
- Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
- By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) 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. Advertiser shall further indemnify Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (1) Ads and Advertising Materials provided by Advertiser or Agency to Media Company and posted on a Site, (2) Media Company’s use of any content or technology other than an Ad or Advertising Materials that Advertiser or Agency require Media Company to use, (3) the pages and sites to which an Ad or Advertising Materials link, and (4) use of any products sold through an Ad or Advertising Materials or through pages or sites to which they link.
- By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency- specific obligations under Section XII.
- Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
- Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section IX, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
- Except in connection with the indemnification obligation under Section IX(a), Media Company’s (including all companies whose sites and properties are included as part of the Ad Network (“Participating Companies”) liability to Advertiser from all causes of action and all theories of liability will be limited to direct damages only and will not, in the aggregate, exceed the fees actually received by Media Company in connection with the IO to which such claims relate. Participating Companies shall be deemed third party beneficiaries of Advertiser’s obligations here under including Advertiser’s indemnity obligations.
- Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party 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. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
- Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
- Additional Definitions. As used herein the following terms shall have the following definitions:
- i. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
- ii. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
- iii. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
- iv. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
- v. “Collected Data” consists of IO Details, Performance Data, and Site Data.
- vi. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
- vii. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
- Use of Collected Data.
- i. Notwithstanding anything to the contrary contained in this Agreement, any data (including, without limitation, User Volunteered Data, Performance Data and Site Data) collected and used by Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) is subject to Media Company’s prior written approval. Without limiting the foregoing, unless otherwise authorized by Media Company in advance in writing, Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) may collect and use Collected Data solely for the purpose of performing under the IO and may not collect or use it for any other purpose (including, without limitation, to target or retarget advertisements). Upon reasonable advance notice, Media Company may review documents in the possession of Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) solely for the purpose of verifying compliance with the foregoing and Advertiser shall ensure Media Company has reasonable access to all such documents for such purpose . In addition, unless otherwise authorized by Media Company in advance in writing, neither Advertiser nor Agency will (A) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party (including, without limitation, Third Party Ad Servers) except as set forth in Section XII(d)(iii).”
- ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO. Media Company may use Collected Data in an Aggregated form generated or collected in connection with the IO (collectively “Permitted Data”) for reporting purposes, optimizing network performance, and other legitimate business purposes of Media Company, on the basis that the Permitted Data does not identify Advertiser and is not used to target based upon Advertiser’s identity.”
- iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the IO and signed by both parties. Where User Collected Data constitutes data previously collected by Media Company in connection with user registrations on a Site, Media Company and Advertiser shall each own such data separately and shall use it in accordance with their respective privacy policy.
- Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
- Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
- Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
- Ad Serving and Tracking. Media Company will track delivery through its ad server and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company’s prior written consent.
- Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:
- i. Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).
- ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non- proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XIII(c), below.
- iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Media Company’s ad server, unless otherwise agreed by Agency and Media Company in writing.
- Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary. Nothing in this Section XIII(c) shall limit, replace or nullify any other obligation set forth in this Agreement (including this Addendum).
- Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency reserves the right to either:
- i. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Agency and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
- ii. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
- Measurement Methodology. Media Company will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
- Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, 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 Media Company to serve Ads until the Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company’s own advertisements or advertisements provided by a Third Party.
- Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Agency.
- Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
- Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
- Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. Each IO may be executed by electronic signature and exchanged by email in scanned or pdf format.
- Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of England and Wales. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely before the courts in London, England and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
- Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
- Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
- Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
Effective September 16, 2020 to March 21, 2023
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Definitions
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
- IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected. Excluding Advertising Materials provided by Advertiser, Media Company shall own and retain all right, title and interest in any materials and content it creates for the media buy pursuant to the IO. Advertiser agrees that it shall not at any time assert or claim any interest in, or do anything that may adversely affect the validity or enforceability of, any intellectual property or other proprietary right belonging to Media Company hereunder.
- Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of
- (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
- Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
- Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will use commercially reasonable efforts to create a reasonably balanced delivery schedule; provided that, Advertiser and Agency acknowledge that given the nature of Media Company’s business impressions on Sites may vary at times. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Agency in writing.
- Changes to Site. Media Company will use commercially reasonable efforts to provide Agency at least 10 business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Agency’s and Advertiser’s sole remedy for such change, Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Agency may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
- Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already- purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company’s cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
- Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Media Company Properties, although Media Company will at all times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company and Agency agree that Media Company’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Agency with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Media Company remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Agency for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Agency and Media Company will negotiate an alternate solution. After Agency notifies Media Company that specific Ads are in violation of the Editorial Adjacency Guidelines, Media Company will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Agency and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Advertiser’s and Agency’s sole remedy for Media Company’s breach of such obligation will be to submit written complaints to Media Company, which will review such complaints and remove user-generated content that Media Company, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.
- Invoices. The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an initial invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. If Media Company sends the initial invoice after the 90-day period and the Agency either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, Agency will use commercially reasonable efforts to assist Media Company in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds. Any failure by Agency to invoice the Advertiser within this time frame shall not in any way limit Media Company’s ability to collect funds from the Advertiser.Any bank charges applicable to the payments made hereunder shall be borne by the Advertiser and/ or Agency, and the Media Company shall not be liable for the same. In no event will the Advertiser and/ or Agency set off any amounts (including but not limited to any bank charges) against the invoice payable to the Media Company.Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided with the net cost (i.e., the cost after subtracting any applicable discounts and commissions, including but not limited to Agency commissions, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
- Payment Date. Order acceptance is subject to credit approval of Advertiser and/or Agency; Advertiser and Agency shall provide information reasonably requested by Media Company to evaluate such entity’s credit and Media Company reserves the right to cancel credit at any time for any reason in its sole discretion, with or without notice. Provided credit is approved, payment is due thirty (30) days from invoice date, unless otherwise agreed in writing by Media Company. Media Company may notify Agency that it has not received payment in such 30- day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice. In the event of non-payment, and without limiting any other remedies, Media Company may offset any amounts due to Media Company against any amounts due from Media Company to Advertiser (or Agency on its behalf) under any agreement or IO, or may offset such amounts against any charges for media to be delivered by Media Company.
- Payment Liability. Media Company may hold Agency liable for payments due by Advertiser, as the disclosed agent of the Advertiser, in the event of non-payment by Advertiser for Ads placed in accordance with the terms of the IO. Agency agrees that Media Company may hold Agency liable for payments in the event that proceeds have not cleared from Advertiser for Ads placed in accordance with the IO. Advertiser shall keep records related to payments made by it to Agency with respect to services provided by Media Company under this Agreement and Agency shall keep records related to payments received by it from Advertiser with respect to services provided by Media Company under this Agreement, and upon reasonable notice from Media Company, Advertiser and Agency shall allow Media Company to review such records. Unless otherwise set forth by the Media Company in the IO, a 2% per month (pro-rated for part thereof) penal interest on late payments shall be levied from the date of receipt of an invoice by the Media Company.Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.Agency’s credit is established on a client-by-client basis.If Advertiser proceeds have not cleared for the IO, other advertisers from Agency will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question. Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO. If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.
- Payment Recovery Costs. Pursuant to Section III(b) above, in the event that Media Company is required to seek payment directly from Advertiser, Media Company may impose additional costs on Advertiser in relation to the IO associated with the recovery of the outstanding payment (i.e., the reasonable costs of debt recovery companies instructed to recover the payments).
- Media Company Reporting. If Media Company is serving the campaign, Media Company may make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).Once Media Company has provided the online or electronic report, if applicable, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Media Company’s invoice for such period.
- Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
(8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables. - ii. With seven (7) days’ prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
- iii. With 30 days’ prior written notice to Media Company, without penalty, for any flat fee- based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
- iv. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
- For Cause. Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
- Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon as possible if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent with these Terms.
- Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Agency or Advertiser has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Agency and/or Advertiser is reasonably current on all amounts owed to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
- Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
- Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms 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 event”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
- Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
- Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder of the IO without penalty.
- Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies. Media Company’s sole remedies for a breach of this provision are set forth in Section V(b), above, Sections IX (c) and (d), below, and Sections X (b) and (c), below.
- Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.
- Compliance. Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Media Company or any of its Affiliates (as defined below), provided that if Media Company has reviewed and approved such Ads prior to their use on the Site, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.
- Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials. 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).
- No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
- Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. All use of Third Party Ad Server tags shall comply with Media Company’s Policies including, without limitation, policies regarding use of tags, cookies and any other technology now known or hereafter developed that is designed to track users’ online behavior or activity as supplied by Media Company from time to time.
- Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
- Policies. For the purposes of Section X(b), Agency agrees that new and/or amended Policies posted by Media Company from time to time on the LoopMe website shall satisfy the requirement to provide prior notice of such Policies to Agency.
- By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any allegations, actions, causes of action, obligations, demands, threatened claims and claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Media Company’s alleged breach of Section XII or of Media Company’s representations and warranties in Section XIV(a), (ii) […] or (iii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene.
- Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
- By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) 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. Advertiser shall further indemnify Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (1) Ads and Advertising Materials provided by Advertiser or Agency to Media Company and posted on a Site, (2) Media Company’s use of any content or technology other than an Ad or Advertising Materials that Advertiser or Agency require Media Company to use, (3) the pages and sites to which an Ad or Advertising Materials link, and (4) use of any products sold through an Ad or Advertising Materials or through pages or sites to which they link.
- By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency- specific obligations under Section XII.
- Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
- Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
- Except in connection with the indemnification obligation under Section X(a), Media Company’s (including all companies whose sites and properties are included as part of the Ad Network (“Participating Companies”) liability to Advertiser from all causes of action and all theories of liability will be limited to direct damages only and will not, in the aggregate, exceed the fees actually received by Media Company in connection with the IO to which such claims relate. Participating Companies shall be deemed third party beneficiaries of Advertiser’s obligations here under including Advertiser’s indemnity obligations.
- Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party 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. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
- Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
- Additional Definitions. As used herein the following terms shall have the following definitions:
- i. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
- ii. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
- iii. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
- iv. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
- v. “Collected Data” consists of IO Details, Performance Data, and Site Data.
- vi. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
- vii. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
- Use of Collected Data.
- i. Notwithstanding anything to the contrary contained in this Agreement, any data (including, without limitation, User Volunteered Data, Performance Data and Site Data) collected and used by Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) is subject to Media Company’s prior written approval. Without limiting the foregoing, unless otherwise authorized by Media Company in advance in writing, Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) may collect and use Collected Data solely for the purpose of performing under the IO and may not collect or use it for any other purpose (including, without limitation, to target or retarget advertisements). Upon reasonable advance notice, Media Company may review documents in the possession of Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) solely for the purpose of verifying compliance with the foregoing and Advertiser shall ensure Media Company has reasonable access to all such documents for such purpose . In addition, unless otherwise authorized by Media Company in advance in writing, neither Advertiser nor Agency will (A) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party (including, without limitation, Third Party Ad Servers) except as set forth in Section XII(d)(iii).”
- ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO. Media Company may use Collected Data in an Aggregated form generated or collected in connection with the IO (collectively “Permitted Data”) for reporting purposes, optimizing network performance, and other legitimate business purposes of Media Company, on the basis that the Permitted Data does not identify Advertiser and is not used to target based upon Advertiser’s identity.”
- iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the IO and signed by both parties. Where User Collected Data constitutes data previously collected by Media Company in connection with user registrations on a Site, Media Company and Advertiser shall each own such data separately and shall use it in accordance with their respective privacy policy.
- Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
- Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
- Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
- Ad Serving and Tracking. Media Company will track delivery through its ad server and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company’s prior written consent.
- Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:
- i. Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).
- ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non- proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XIII(c), below.
- iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Media Company’s ad server, unless otherwise agreed by Agency and Media Company in writing.
- Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary. Nothing in this Section XIII(c) shall limit, replace or nullify any other obligation set forth in this Agreement (including this Addendum).
- Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency reserves the right to either:
- i. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Agency and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
- ii. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
- Measurement Methodology. Media Company will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
- Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, 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 Media Company to serve Ads until the Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company’s own advertisements or advertisements provided by a Third Party.
- Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Agency.
- Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
- Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
- Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. Each IO may be executed by electronic signature and exchanged by email in scanned or pdf format.
- Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of England and Wales. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely before the courts in London, England and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
- Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
- Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
- Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
Effective July 29, 2020 to September 16, 2020
DownloadTable of Contents
Definitions
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
- IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected. Excluding Advertising Materials provided by Advertiser, Media Company shall own and retain all right, title and interest in any materials and content it creates for the media buy pursuant to the IO. Advertiser agrees that it shall not at any time assert or claim any interest in, or do anything that may adversely affect the validity or enforceability of, any intellectual property or other proprietary right belonging to Media Company hereunder.
- Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of
- (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
- Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
- Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will use commercially reasonable efforts to create a reasonably balanced delivery schedule; provided that, Advertiser and Agency acknowledge that given the nature of Media Company’s business impressions on Sites may vary at times. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Agency in writing.
- Changes to Site. Media Company will use commercially reasonable efforts to provide Agency at least 10 business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Agency’s and Advertiser’s sole remedy for such change, Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Agency may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
- Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already- purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company’s cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
- Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Media Company Properties, although Media Company will at all times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company and Agency agree that Media Company’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Agency with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Media Company remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Agency for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Agency and Media Company will negotiate an alternate solution. After Agency notifies Media Company that specific Ads are in violation of the Editorial Adjacency Guidelines, Media Company will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Agency and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Advertiser’s and Agency’s sole remedy for Media Company’s breach of such obligation will be to submit written complaints to Media Company, which will review such complaints and remove user-generated content that Media Company, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.
- Invoices. The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an initial invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. If Media Company sends the initial invoice after the 90-day period and the Agency either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, Agency will use commercially reasonable efforts to assist Media Company in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds. Any failure by Agency to invoice the Advertiser within this time frame shall not in any way limit Media Company’s ability to collect funds from the Advertiser.Any bank charges applicable to the payments made hereunder shall be borne by the Advertiser and/ or Agency, and the Media Company shall not be liable for the same. In no event will the Advertiser and/ or Agency set off any amounts (including but not limited to any bank charges) against the invoice payable to the Media Company.Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided with the net cost (i.e., the cost after subtracting any applicable discounts and commissions, including but not limited to Agency commissions, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
- Payment Date. Order acceptance is subject to credit approval of Advertiser and/or Agency; Advertiser and Agency shall provide information reasonably requested by Media Company to evaluate such entity’s credit and Media Company reserves the right to cancel credit at any time for any reason in its sole discretion, with or without notice. Provided credit is approved, payment is due thirty (30) days from invoice date, unless otherwise agreed in writing by Media Company. Media Company may notify Agency that it has not received payment in such 30- day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice. In the event of non-payment, and without limiting any other remedies, Media Company may offset any amounts due to Media Company against any amounts due from Media Company to Advertiser (or Agency on its behalf) under any agreement or IO, or may offset such amounts against any charges for media to be delivered by Media Company.
- Payment Liability. Media Company may hold Agency liable for payments due by Advertiser, as the disclosed agent of the Advertiser, in the event of non-payment by Advertiser for Ads placed in accordance with the terms of the IO. Agency agrees that Media Company may hold Agency liable for payments in the event that proceeds have not cleared from Advertiser for Ads placed in accordance with the IO. Advertiser shall keep records related to payments made by it to Agency with respect to services provided by Media Company under this Agreement and Agency shall keep records related to payments received by it from Advertiser with respect to services provided by Media Company under this Agreement, and upon reasonable notice from Media Company, Advertiser and Agency shall allow Media Company to review such records. Unless otherwise set forth by the Media Company in the IO, a 2% per month (pro-rated for part thereof) penal interest on late payments shall be levied from the date of receipt of an invoice by the Media Company.Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.Agency’s credit is established on a client-by-client basis.If Advertiser proceeds have not cleared for the IO, other advertisers from Agency will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question. Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO. If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.
- Payment Recovery Costs. Pursuant to Section III(b) above, in the event that Media Company is required to seek payment directly from Advertiser, Media Company may impose additional costs on Advertiser in relation to the IO associated with the recovery of the outstanding payment (i.e., the reasonable costs of debt recovery companies instructed to recover the payments).
- Media Company Reporting. If Media Company is serving the campaign, Media Company may make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).Once Media Company has provided the online or electronic report, if applicable, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Media Company’s invoice for such period.
- Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
(8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables. - ii. With seven (7) days’ prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
- iii. With 30 days’ prior written notice to Media Company, without penalty, for any flat fee- based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
- iv. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
- For Cause. Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
- Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon as possible if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent with these Terms.
- Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Agency or Advertiser has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Agency and/or Advertiser is reasonably current on all amounts owed to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
- Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
- Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms 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 event”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
- Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
- Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder of the IO without penalty.
- Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies. Media Company’s sole remedies for a breach of this provision are set forth in Section V(b), above, Sections IX (c) and (d), below, and Sections X (b) and (c), below.
- Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.
- Compliance. Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Media Company or any of its Affiliates (as defined below), provided that if Media Company has reviewed and approved such Ads prior to their use on the Site, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.
- Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials. 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).
- No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
- Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. All use of Third Party Ad Server tags shall comply with Media Company’s Policies including, without limitation, policies regarding use of tags, cookies and any other technology now known or hereafter developed that is designed to track users’ online behavior or activity as supplied by Media Company from time to time.
- Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
- Policies. For the purposes of Section X(b), Agency agrees that new and/or amended Policies posted by Media Company from time to time on the LoopMe website shall satisfy the requirement to provide prior notice of such Policies to Agency.
- By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any allegations, actions, causes of action, obligations, demands, threatened claims and claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Media Company’s alleged breach of Section XII or of Media Company’s representations and warranties in Section XIV(a), (ii) […] or (iii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene.
- Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
- By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) 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. Advertiser shall further indemnify Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (1) Ads and Advertising Materials provided by Advertiser or Agency to Media Company and posted on a Site, (2) Media Company’s use of any content or technology other than an Ad or Advertising Materials that Advertiser or Agency require Media Company to use, (3) the pages and sites to which an Ad or Advertising Materials link, and (4) use of any products sold through an Ad or Advertising Materials or through pages or sites to which they link.
- By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency- specific obligations under Section XII.
- Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
- Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
- Except in connection with the indemnification obligation under Section X(a), Media Company’s (including all companies whose sites and properties are included as part of the Ad Network (“Participating Companies”) liability to Advertiser from all causes of action and all theories of liability will be limited to direct damages only and will not, in the aggregate, exceed the fees actually received by Media Company in connection with the IO to which such claims relate. Participating Companies shall be deemed third party beneficiaries of Advertiser’s obligations here under including Advertiser’s indemnity obligations.
- Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party 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. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
- Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
- Additional Definitions. As used herein the following terms shall have the following definitions:
- i. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
- ii. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
- iii. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
- iv. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
- v. “Collected Data” consists of IO Details, Performance Data, and Site Data.
- vi. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
- vii. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
- Use of Collected Data.
- i. Notwithstanding anything to the contrary contained in this Agreement, any data (including, without limitation, User Volunteered Data, Performance Data and Site Data) collected and used by Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) is subject to Media Company’s prior written approval. Without limiting the foregoing, unless otherwise authorized by Media Company in advance in writing, Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) may collect and use Collected Data solely for the purpose of performing under the IO and may not collect or use it for any other purpose (including, without limitation, to target or retarget advertisements). Upon reasonable advance notice, Media Company may review documents in the possession of Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) solely for the purpose of verifying compliance with the foregoing and Advertiser shall ensure Media Company has reasonable access to all such documents for such purpose . In addition, unless otherwise authorized by Media Company in advance in writing, neither Advertiser nor Agency will (A) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party (including, without limitation, Third Party Ad Servers) except as set forth in Section XII(d)(iii).”
- ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO. Media Company may use Collected Data in an Aggregated form generated or collected in connection with the IO (collectively “Permitted Data”) for reporting purposes, optimizing network performance, and other legitimate business purposes of Media Company, on the basis that the Permitted Data does not identify Advertiser and is not used to target based upon Advertiser’s identity.”
- iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the IO and signed by both parties. Where User Collected Data constitutes data previously collected by Media Company in connection with user registrations on a Site, Media Company and Advertiser shall each own such data separately and shall use it in accordance with their respective privacy policy.
- Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
- Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
- Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
- Ad Serving and Tracking. Media Company will track delivery through its ad server and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company’s prior written consent.
- Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:
- i. Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).
- ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non- proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XIII(c), below.
- iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Media Company’s ad server, unless otherwise agreed by Agency and Media Company in writing.
- Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary. Nothing in this Section XIII(c) shall limit, replace or nullify any other obligation set forth in this Agreement (including this Addendum).
- Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency reserves the right to either:
- i. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Agency and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
- ii. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
- Measurement Methodology. Media Company will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
- Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, 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 Media Company to serve Ads until the Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company’s own advertisements or advertisements provided by a Third Party.
- Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Agency.
- Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
- Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
- Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. Each IO may be executed by electronic signature and exchanged by email in scanned or pdf format.
- Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of England and Wales. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely before the courts in London, England and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
- Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
- Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
- Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
Effective April 23, 2020 to July 29, 2020
DownloadTable of Contents
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
- IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected. Excluding Advertising Materials provided by Advertiser, Media Company shall own and retain all right, title and interest in any materials and content it creates for the media buy pursuant to the IO. Advertiser agrees that it shall not at any time assert or claim any interest in, or do anything that may adversely affect the validity or enforceability of, any intellectual property or other proprietary right belonging to Media Company hereunder.
- Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of
- (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
- Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
- Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will use commercially reasonable efforts to create a reasonably balanced delivery schedule; provided that, Advertiser and Agency acknowledge that given the nature of Media Company’s business impressions on Sites may vary at times. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Agency in writing.
- Changes to Site. Media Company will use commercially reasonable efforts to provide Agency at least 10 business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Agency’s and Advertiser’s sole remedy for such change, Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Agency may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
- Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already- purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company’s cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
- Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Media Company Properties, although Media Company will at all times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company and Agency agree that Media Company’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Agency with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Media Company remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Agency for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Agency and Media Company will negotiate an alternate solution. After Agency notifies Media Company that specific Ads are in violation of the Editorial Adjacency Guidelines, Media Company will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Agency and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Advertiser’s and Agency’s sole remedy for Media Company’s breach of such obligation will be to submit written complaints to Media Company, which will review such complaints and remove user-generated content that Media Company, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.
- Invoices. The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an initial invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. If Media Company sends the initial invoice after the 90-day period and the Agency either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, Agency will use commercially reasonable efforts to assist Media Company in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds. Any failure by Agency to invoice the Advertiser within this time frame shall not in any way limit Media Company’s ability to collect funds from the Advertiser.Any bank charges applicable to the payments made hereunder shall be borne by the Advertiser and/ or Agency, and the Media Company shall not be liable for the same. In no event will the Advertiser and/ or Agency set off any amounts (including but not limited to any bank charges) against the invoice payable to the Media Company.Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided with the net cost (i.e., the cost after subtracting any applicable discounts and commissions, including but not limited to Agency commissions, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
- Payment Date. Order acceptance is subject to credit approval of Advertiser and/or Agency; Advertiser and Agency shall provide information reasonably requested by Media Company to evaluate such entity’s credit and Media Company reserves the right to cancel credit at any time for any reason in its sole discretion, with or without notice. Provided credit is approved, payment is due thirty (30) days from invoice date, unless otherwise agreed in writing by Media Company. Media Company may notify Agency that it has not received payment in such 30- day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice. In the event of non-payment, and without limiting any other remedies, Media Company may offset any amounts due to Media Company against any amounts due from Media Company to Advertiser (or Agency on its behalf) under any agreement or IO, or may offset such amounts against any charges for media to be delivered by Media Company.
- Payment Liability. Media Company may hold Agency liable for payments due by Advertiser, as the disclosed agent of the Advertiser, in the event of non-payment by Advertiser for Ads placed in accordance with the terms of the IO. Agency agrees that Media Company may hold Agency liable for payments in the event that proceeds have not cleared from Advertiser for Ads placed in accordance with the IO. Advertiser shall keep records related to payments made by it to Agency with respect to services provided by Media Company under this Agreement and Agency shall keep records related to payments received by it from Advertiser with respect to services provided by Media Company under this Agreement, and upon reasonable notice from Media Company, Advertiser and Agency shall allow Media Company to review such records. Unless otherwise set forth by the Media Company in the IO, a 2% per month (pro-rated for part thereof) penal interest on late payments shall be levied from the date of receipt of an invoice by the Media Company.Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.Agency’s credit is established on a client-by-client basis.If Advertiser proceeds have not cleared for the IO, other advertisers from Agency will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question.Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.
- Payment Recovery Costs. Pursuant to Section III(b) above, in the event that Media Company is required to seek payment directly from Advertiser, Media Company may impose additional costs on Advertiser in relation to the IO associated with the recovery of the outstanding payment (i.e., the reasonable costs of debt recovery companies instructed to recover the payments).
- Media Company Reporting. If Media Company is serving the campaign, Media Company may make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).Once Media Company has provided the online or electronic report, if applicable, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Media Company’s invoice for such period.
- Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
(8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables. - ii. With seven (7) days’ prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
- iii. With 30 days’ prior written notice to Media Company, without penalty, for any flat fee- based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
- iv. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
- For Cause. Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
- Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon as possible if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent with these Terms.
- Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Agency or Advertiser has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Agency and/or Advertiser is reasonably current on all amounts owed to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
- Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
- Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms 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 event”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
- Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
- Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder of the IO without penalty.
- Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies. Media Company’s sole remedies for a breach of this provision are set forth in Section V(b), above, Sections IX (c) and (d), below, and Sections X (b) and (c), below.
- Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.
- Compliance. Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Media Company or any of its Affiliates (as defined below), provided that if Media Company has reviewed and approved such Ads prior to their use on the Site, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.
- Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials. 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).
- No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
- Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. All use of Third Party Ad Server tags shall comply with Media Company’s Policies including, without limitation, policies regarding use of tags, cookies and any other technology now known or hereafter developed that is designed to track users’ online behavior or activity as supplied by Media Company from time to time.
- Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
- Policies. For the purposes of Section X(b), Agency agrees that new and/or amended Policies posted by Media Company from time to time on the LoopMe website shall satisfy the requirement to provide prior notice of such Policies to Agency.
- By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any allegations, actions, causes of action, obligations, demands, threatened claims and claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Media Company’s alleged breach of Section XII or of Media Company’s representations and warranties in Section XIV(a), (ii) […] or (iii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene.
- Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
- By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) 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. Advertiser shall further indemnify Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (1) Ads and Advertising Materials provided by Advertiser or Agency to Media Company and posted on a Site, (2) Media Company’s use of any content or technology other than an Ad or Advertising Materials that Advertiser or Agency require Media Company to use, (3) the pages and sites to which an Ad or Advertising Materials link, and (4) use of any products sold through an Ad or Advertising Materials or through pages or sites to which they link.
- By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency- specific obligations under Section XII.
- Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
- Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
- Except in connection with the indemnification obligation under Section X(a), Media Company’s (including all companies whose sites and properties are included as part of the Ad Network (“Participating Companies”) liability to Advertiser from all causes of action and all theories of liability will be limited to direct damages only and will not, in the aggregate, exceed the fees actually received by Media Company in connection with the IO to which such claims relate. Participating Companies shall be deemed third party beneficiaries of Advertiser’s obligations here under including Advertiser’s indemnity obligations.
- Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party 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. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
- Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
- Additional Definitions. As used herein the following terms shall have the following definitions:
- i. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
- ii. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
- iii. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
- iv. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
- v. “Collected Data” consists of IO Details, Performance Data, and Site Data.
- vi. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
- vii. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
- Use of Collected Data.
- i. Notwithstanding anything to the contrary contained in this Agreement, any data (including, without limitation, User Volunteered Data, Performance Data and Site Data) collected and used by Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) is subject to Media Company’s prior written approval. Without limiting the foregoing, unless otherwise authorized by Media Company in advance in writing, Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) may collect and use Collected Data solely for the purpose of performing under the IO and may not collect or use it for any other purpose (including, without limitation, to target or retarget advertisements). Upon reasonable advance notice, Media Company may review documents in the possession of Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) solely for the purpose of verifying compliance with the foregoing and Advertiser shall ensure Media Company has reasonable access to all such documents for such purpose . In addition, unless otherwise authorized by Media Company in advance in writing, neither Advertiser nor Agency will (A) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party (including, without limitation, Third Party Ad Servers) except as set forth in Section XII(d)(iii).”
- ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO. Media Company may use Collected Data in an Aggregated form generated or collected in connection with the IO (collectively “Permitted Data”) for reporting purposes, optimizing network performance, and other legitimate business purposes of Media Company, on the basis that the Permitted Data does not identify Advertiser and is not used to target based upon Advertiser’s identity.”
- iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the IO and signed by both parties. Where User Collected Data constitutes data previously collected by Media Company in connection with user registrations on a Site, Media Company and Advertiser shall each own such data separately and shall use it in accordance with their respective privacy policy.
- Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
- Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
- Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
- Ad Serving and Tracking. Media Company will track delivery through its ad server and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company’s prior written consent.
- Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:
- i. Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).
- ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non- proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XIII(c), below.
- iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Media Company’s ad server, unless otherwise agreed by Agency and Media Company in writing.
- Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary. Nothing in this Section XIII(c) shall limit, replace or nullify any other obligation set forth in this Agreement (including this Addendum).
- Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency reserves the right to either:
- i. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Agency and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
- ii. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
- Measurement Methodology. Media Company will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
- Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, 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 Media Company to serve Ads until the Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company’s own advertisements or advertisements provided by a Third Party.
- Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Agency.
- Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
- Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
- Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. Each IO may be executed by electronic signature and exchanged by email in scanned or pdf format.
- Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of England and Wales. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely before the courts in London, England and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
- Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
- Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
- Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
Effective February 18, 2020 to April 23, 2020
DownloadTable of Contents
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
- IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected. Excluding Advertising Materials provided by Advertiser, Media Company shall own and retain all right, title and interest in any materials and content it creates for the media buy pursuant to the IO. Advertiser agrees that it shall not at any time assert or claim any interest in, or do anything that may adversely affect the validity or enforceability of, any intellectual property or other proprietary right belonging to Media Company hereunder.
- Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of
- (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
- Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
- Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will use commercially reasonable efforts to create a reasonably balanced delivery schedule; provided that, Advertiser and Agency acknowledge that given the nature of Media Company’s business impressions on Sites may vary at times. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Agency in writing.
- Changes to Site. Media Company will use commercially reasonable efforts to provide Agency at least 10 business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Agency’s and Advertiser’s sole remedy for such change, Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Agency may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
- Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already- purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company’s cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
- Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Media Company Properties, although Media Company will at all times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company and Agency agree that Media Company’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Agency with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Media Company remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Agency for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Agency and Media Company will negotiate an alternate solution. After Agency notifies Media Company that specific Ads are in violation of the Editorial Adjacency Guidelines, Media Company will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Agency and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Advertiser’s and Agency’s sole remedy for Media Company’s breach of such obligation will be to submit written complaints to Media Company, which will review such complaints and remove user-generated content that Media Company, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.
- Invoices. The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an initial invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. If Media Company sends the initial invoice after the 90-day period and the Agency either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, Agency will use commercially reasonable efforts to assist Media Company in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds. Any failure by Agency to invoice the Advertiser within this time frame shall not in any way limit Media Company’s ability to collect funds from the Advertiser.Any bank charges applicable to the payments made hereunder shall be borne by the Advertiser and/ or Agency, and the Media Company shall not be liable for the same. In no event will the Advertiser and/ or Agency set off any amounts (including but not limited to any bank charges) against the invoice payable to the Media Company.Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided with the net cost (i.e., the cost after subtracting any applicable discounts and commissions, including but not limited to Agency commissions, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
- Payment Date. Order acceptance is subject to credit approval of Advertiser and/or Agency; Advertiser and Agency shall provide information reasonably requested by Media Company to evaluate such entity’s credit and Media Company reserves the right to cancel credit at any time for any reason in its sole discretion, with or without notice. Provided credit is approved, payment is due thirty (30) days from invoice date, unless otherwise agreed in writing by Media Company. Media Company may notify Agency that it has not received payment in such 30- day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice. In the event of non-payment, and without limiting any other remedies, Media Company may offset any amounts due to Media Company against any amounts due from Media Company to Advertiser (or Agency on its behalf) under any agreement or IO, or may offset such amounts against any charges for media to be delivered by Media Company.
- Payment Liability. Media Company may hold Agency liable for payments due by Advertiser, as the disclosed agent of the Advertiser, in the event of non-payment by Advertiser for Ads placed in accordance with the terms of the IO. Agency agrees that Media Company may hold Agency liable for payments in the event that proceeds have not cleared from Advertiser for Ads placed in accordance with the IO. Advertiser shall keep records related to payments made by it to Agency with respect to services provided by Media Company under this Agreement and Agency shall keep records related to payments received by it from Advertiser with respect to services provided by Media Company under this Agreement, and upon reasonable notice from Media Company, Advertiser and Agency shall allow Media Company to review such records. Unless otherwise set forth by the Media Company in the IO, a 2% per month (pro-rated for part thereof) penal interest on late payments shall be levied from the date of receipt of an invoice by the Media Company.Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.Agency’s credit is established on a client-by-client basis.If Advertiser proceeds have not cleared for the IO, other advertisers from Agency will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question.Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.
- Payment Recovery Costs. Pursuant to Section III(b) above, in the event that Media Company is required to seek payment directly from Advertiser, Media Company may impose additional costs on Advertiser in relation to the IO associated with the recovery of the outstanding payment (i.e., the reasonable costs of debt recovery companies instructed to recover the payments).
- Media Company Reporting. If Media Company is serving the campaign, Media Company may make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).Once Media Company has provided the online or electronic report, if applicable, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Media Company’s invoice for such period.
- Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
(8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables. - ii. With seven (7) days’ prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
- iii. With 30 days’ prior written notice to Media Company, without penalty, for any flat fee- based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
- iv. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
- For Cause. Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
- Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon as possible if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent with these Terms.
- Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Agency or Advertiser has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Agency and/or Advertiser is reasonably current on all amounts owed to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
- Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
- Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms 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 event”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
- Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
- Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder of the IO without penalty.
- Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies. Media Company’s sole remedies for a breach of this provision are set forth in Section V(b), above, Sections IX (c) and (d), below, and Sections X (b) and (c), below.
- Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.
- Compliance. Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Media Company or any of its Affiliates (as defined below), provided that if Media Company has reviewed and approved such Ads prior to their use on the Site, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.
- Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials. 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).
- No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
- Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. All use of Third Party Ad Server tags shall comply with Media Company’s Policies including, without limitation, policies regarding use of tags, cookies and any other technology now known or hereafter developed that is designed to track users’ online behavior or activity as supplied by Media Company from time to time.
- Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
- Policies. For the purposes of Section X(b), Agency agrees that new and/or amended Policies posted by Media Company from time to time on the LoopMe website shall satisfy the requirement to provide prior notice of such Policies to Agency.
- By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any allegations, actions, causes of action, obligations, demands, threatened claims and claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Media Company’s alleged breach of Section XII or of Media Company’s representations and warranties in Section XIV(a), (ii) […] or (iii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene.
- Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
- By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) 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. Advertiser shall further indemnify Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (1) Ads and Advertising Materials provided by Advertiser or Agency to Media Company and posted on a Site, (2) Media Company’s use of any content or technology other than an Ad or Advertising Materials that Advertiser or Agency require Media Company to use, (3) the pages and sites to which an Ad or Advertising Materials link, and (4) use of any products sold through an Ad or Advertising Materials or through pages or sites to which they link.
- By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency- specific obligations under Section XII.
- Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
- Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
- Except in connection with the indemnification obligation under Section X(a), Media Company’s (including all companies whose sites and properties are included as part of the Ad Network (“Participating Companies”) liability to Advertiser from all causes of action and all theories of liability will be limited to direct damages only and will not, in the aggregate, exceed the fees actually received by Media Company in connection with the IO to which such claims relate. Participating Companies shall be deemed third party beneficiaries of Advertiser’s obligations here under including Advertiser’s indemnity obligations.
- Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party 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. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
- Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
- Additional Definitions. As used herein the following terms shall have the following definitions:
- i. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
- ii. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
- iii. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
- iv. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
- v. “Collected Data” consists of IO Details, Performance Data, and Site Data.
- vi. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
- vii. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
- Use of Collected Data.
- i. Notwithstanding anything to the contrary contained in this Agreement, any data (including, without limitation, User Volunteered Data, Performance Data and Site Data) collected and used by Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) is subject to Media Company’s prior written approval. Without limiting the foregoing, unless otherwise authorized by Media Company in advance in writing, Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) may collect and use Collected Data solely for the purpose of performing under the IO and may not collect or use it for any other purpose (including, without limitation, to target or retarget advertisements). Upon reasonable advance notice, Media Company may review documents in the possession of Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) solely for the purpose of verifying compliance with the foregoing and Advertiser shall ensure Media Company has reasonable access to all such documents for such purpose . In addition, unless otherwise authorized by Media Company in advance in writing, neither Advertiser nor Agency will (A) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party (including, without limitation, Third Party Ad Servers) except as set forth in Section XII(d)(iii).”
- ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO. Media Company may use Collected Data in an Aggregated form generated or collected in connection with the IO (collectively “Permitted Data”) for reporting purposes, optimizing network performance, and other legitimate business purposes of Media Company, on the basis that the Permitted Data does not identify Advertiser and is not used to target based upon Advertiser’s identity.”
- iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the IO and signed by both parties. Where User Collected Data constitutes data previously collected by Media Company in connection with user registrations on a Site, Media Company and Advertiser shall each own such data separately and shall use it in accordance with their respective privacy policy.
- Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
- Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
- Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
- Ad Serving and Tracking. Media Company will track delivery through its ad server and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company’s prior written consent.
- Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:
- i. Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).
- ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non- proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XIII(c), below.
- iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Media Company’s ad server, unless otherwise agreed by Agency and Media Company in writing.
- Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary. Nothing in this Section XIII(c) shall limit, replace or nullify any other obligation set forth in this Agreement (including this Addendum).
- Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency reserves the right to either:
- i. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Agency and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
- ii. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
- Measurement Methodology. Media Company will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
- Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, 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 Media Company to serve Ads until the Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company’s own advertisements or advertisements provided by a Third Party.
- Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Agency.
- Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
- Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
- Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. Each IO may be executed by electronic signature and exchanged by email in scanned or pdf format.
- Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of England and Wales. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely before the courts in London, England and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
- Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
- Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
- Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
Effective February 18, 2020 to February 18, 2020
DownloadTable of Contents
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
- IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected. Excluding Advertising Materials provided by Advertiser, Media Company shall own and retain all right, title and interest in any materials and content it creates for the media buy pursuant to the IO. Advertiser agrees that it shall not at any time assert or claim any interest in, or do anything that may adversely affect the validity or enforceability of, any intellectual property or other proprietary right belonging to Media Company hereunder.
- Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of
- (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Agency.
- Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.
- Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will use commercially reasonable efforts to create a reasonably balanced delivery schedule; provided that, Advertiser and Agency acknowledge that given the nature of Media Company’s business impressions on Sites may vary at times. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Agency in writing.
- Changes to Site. Media Company will use commercially reasonable efforts to provide Agency at least 10 business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Agency’s and Advertiser’s sole remedy for such change, Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Agency may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
- Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already- purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company’s cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
- Editorial Adjacencies. Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Adjacency Guidelines”). Media Company will use commercially reasonable efforts to comply with the Editorial Adjacency Guidelines with respect to Ads that appear on Media Company Properties, although Media Company will at all times retain editorial control over the Media Company Properties. For Ads shown on Network Properties, Media Company and Agency agree that Media Company’s sole responsibilities with respect to compliance with these Editorial Adjacency Guidelines will be to obtain contractual representations from its participating network publishers that such publishers will comply with Editorial Adjacency Guidelines on all Network Properties and to provide the remedy specified below to Agency with respect to violations of Editorial Adjacency Guidelines on Network Properties. Should Ads appear in violation of the Editorial Adjacency Guidelines, Advertiser’s sole and exclusive remedy is to request in writing that Media Company remove the Ads and provide makegoods or, if no makegood can be agreed upon, issue a credit to Advertiser equal to the value of such Ads, or not bill Agency for such Ads. In cases where a makegood and a credit can be shown to be commercially infeasible for the Advertiser, Agency and Media Company will negotiate an alternate solution. After Agency notifies Media Company that specific Ads are in violation of the Editorial Adjacency Guidelines, Media Company will make commercially reasonable efforts to correct such violation within 24 hours. If such correction materially and adversely impacts such IO, Agency and Media Company will negotiate in good faith mutually agreed changes to such IO to address such impacts. Notwithstanding the foregoing, Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any violation of the Editorial Adjacency Guidelines resulting from: (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Agency or Advertiser is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Guidelines.For any page on the Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use. Advertiser’s and Agency’s sole remedy for Media Company’s breach of such obligation will be to submit written complaints to Media Company, which will review such complaints and remove user-generated content that Media Company, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.
- Invoices. The initial invoice will be sent by Media Company upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. Media Company acknowledges that failure by Media Company to send an initial invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. If Media Company sends the initial invoice after the 90-day period and the Agency either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, Agency will use commercially reasonable efforts to assist Media Company in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds. Any failure by Agency to invoice the Advertiser within this time frame shall not in any way limit Media Company’s ability to collect funds from the Advertiser.Any bank charges applicable to the payments made hereunder shall be borne by the Advertiser and/ or Agency, and the Media Company shall not be liable for the same. In no event will the Advertiser and/ or Agency set off any amounts (including but not limited to any bank charges) against the invoice payable to the Media Company.Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided with the net cost (i.e., the cost after subtracting any applicable discounts and commissions, including but not limited to Agency commissions, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
- Payment Date. Order acceptance is subject to credit approval of Advertiser and/or Agency; Advertiser and Agency shall provide information reasonably requested by Media Company to evaluate such entity’s credit and Media Company reserves the right to cancel credit at any time for any reason in its sole discretion, with or without notice. Provided credit is approved, payment is due thirty (30) days from invoice date, unless otherwise agreed in writing by Media Company. Media Company may notify Agency that it has not received payment in such 30- day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice. In the event of non-payment, and without limiting any other remedies, Media Company may offset any amounts due to Media Company against any amounts due from Media Company to Advertiser (or Agency on its behalf) under any agreement or IO, or may offset such amounts against any charges for media to be delivered by Media Company.
- Payment Liability. Media Company may hold Agency liable for payments due by Advertiser, as the disclosed agent of the Advertiser, in the event of non-payment by Advertiser for Ads placed in accordance with the terms of the IO. Agency agrees that Media Company may hold Agency liable for payments in the event that proceeds have not cleared from Advertiser for Ads placed in accordance with the IO. Advertiser shall keep records related to payments made by it to Agency with respect to services provided by Media Company under this Agreement and Agency shall keep records related to payments received by it from Advertiser with respect to services provided by Media Company under this Agreement, and upon reasonable notice from Media Company, Advertiser and Agency shall allow Media Company to review such records. Unless otherwise set forth by the Media Company in the IO, a 2% per month (pro-rated for part thereof) penal interest on late payments shall be levied from the date of receipt of an invoice by the Media Company.Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.Agency’s credit is established on a client-by-client basis.If Advertiser proceeds have not cleared for the IO, other advertisers from Agency will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers’ credit is not in question.Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.
- Payment Recovery Costs. Pursuant to Section III(b) above, in the event that Media Company is required to seek payment directly from Advertiser, Media Company may impose additional costs on Advertiser in relation to the IO associated with the recovery of the outstanding payment (i.e., the reasonable costs of debt recovery companies instructed to recover the payments).
- Media Company Reporting. If Media Company is serving the campaign, Media Company may make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).Once Media Company has provided the online or electronic report, if applicable, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Media Company’s invoice for such period.
- Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows:
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
(8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables. - ii. With seven (7) days’ prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
- iii. With 30 days’ prior written notice to Media Company, without penalty, for any flat fee- based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
- iv. Advertiser will remain liable to Media Company for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
- i. With 14 days’ prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight
- For Cause. Either Media Company or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Agency, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.
- Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Agency either electronically or in writing as soon as possible if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent with these Terms.
- Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Agency or Advertiser has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Agency and/or Advertiser is reasonably current on all amounts owed to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Agency.
- Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
- Generally. Excluding payment obligations, neither Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms 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 event”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
- Related to Payment. If Agency’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
- Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Agency has the right to cancel the remainder of the IO without penalty.
- Submission. Agency will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company’s then-existing Policies. Media Company’s sole remedies for a breach of this provision are set forth in Section V(b), above, Sections IX (c) and (d), below, and Sections X (b) and (c), below.
- Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Advertiser on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the IO start date.
- Compliance. Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Media Company reserves the right within its discretion to reject or remove from its Site any Ads for which the Advertising Materials or the website to which the Ad is linked are, or may tend to bring, disparagement, ridicule, or scorn upon Media Company or any of its Affiliates (as defined below), provided that if Media Company has reviewed and approved such Ads prior to their use on the Site, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.
- Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials. 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).
- No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
- Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. All use of Third Party Ad Server tags shall comply with Media Company’s Policies including, without limitation, policies regarding use of tags, cookies and any other technology now known or hereafter developed that is designed to track users’ online behavior or activity as supplied by Media Company from time to time.
- Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
- Policies. For the purposes of Section X(b), Agency agrees that new and/or amended Policies posted by Media Company from time to time on the LoopMe website shall satisfy the requirement to provide prior notice of such Policies to Agency.
- By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any allegations, actions, causes of action, obligations, demands, threatened claims and claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Media Company’s alleged breach of Section XII or of Media Company’s representations and warranties in Section XIV(a), (ii) […] or (iii) Advertising Materials provided by Media Company for an Ad (and not by Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene.
- Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
- By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser’s alleged breach of Section XII or of Advertiser’s representations and warranties in Section XIV(a), (ii) Advertiser’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Agency or Advertiser at least 14 days prior to the violation giving rise to the Claim), or (iii) 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. Advertiser shall further indemnify Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (1) Ads and Advertising Materials provided by Advertiser or Agency to Media Company and posted on a Site, (2) Media Company’s use of any content or technology other than an Ad or Advertising Materials that Advertiser or Agency require Media Company to use, (3) the pages and sites to which an Ad or Advertising Materials link, and (4) use of any products sold through an Ad or Advertising Materials or through pages or sites to which they link.
- By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency- specific obligations under Section XII.
- Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
- Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
- Except in connection with the indemnification obligation under Section X(a), Media Company’s (including all companies whose sites and properties are included as part of the Ad Network (“Participating Companies”) liability to Advertiser from all causes of action and all theories of liability will be limited to direct damages only and will not, in the aggregate, exceed the fees actually received by Media Company in connection with the IO to which such claims relate. Participating Companies shall be deemed third party beneficiaries of Advertiser’s obligations here under including Advertiser’s indemnity obligations.
- Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party 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. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
- Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
- Additional Definitions. As used herein the following terms shall have the following definitions:
- i. “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
- ii. “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
- iii. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
- iv. “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
- v. “Collected Data” consists of IO Details, Performance Data, and Site Data.
- vi. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
- vii. “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
- Use of Collected Data.
- i. Notwithstanding anything to the contrary contained in this Agreement, any data (including, without limitation, User Volunteered Data, Performance Data and Site Data) collected and used by Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) is subject to Media Company’s prior written approval. Without limiting the foregoing, unless otherwise authorized by Media Company in advance in writing, Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) may collect and use Collected Data solely for the purpose of performing under the IO and may not collect or use it for any other purpose (including, without limitation, to target or retarget advertisements). Upon reasonable advance notice, Media Company may review documents in the possession of Advertiser, Agency and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Advertiser or Agency in connection with a campaign (including, without limitation, Third Party Ad Servers) solely for the purpose of verifying compliance with the foregoing and Advertiser shall ensure Media Company has reasonable access to all such documents for such purpose . In addition, unless otherwise authorized by Media Company in advance in writing, neither Advertiser nor Agency will (A) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party (including, without limitation, Third Party Ad Servers) except as set forth in Section XII(d)(iii).”
- ii. Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO. Media Company may use Collected Data in an Aggregated form generated or collected in connection with the IO (collectively “Permitted Data”) for reporting purposes, optimizing network performance, and other legitimate business purposes of Media Company, on the basis that the Permitted Data does not identify Advertiser and is not used to target based upon Advertiser’s identity.”
- iii. Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the IO and signed by both parties. Where User Collected Data constitutes data previously collected by Media Company in connection with user registrations on a Site, Media Company and Advertiser shall each own such data separately and shall use it in accordance with their respective privacy policy.
- Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Media Company, on the one hand, or Agency or Advertiser, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
- Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
- Agency Use of Data. Agency will not: (i) use Collected Data unless Advertiser is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Advertiser is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section XII(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
- Ad Serving and Tracking. Media Company will track delivery through its ad server and, provided that Media Company has approved in writing a Third Party Ad Server to run on its properties, Agency will track delivery through such Third Party Ad Server. Agency may not substitute the specified Third Party Ad Server without Media Company’s prior written consent.
- Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO (“Controlling Measurement”) will be determined as follows:
- i. Except as specified in Section XIII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).
- ii. If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non- proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XIII(c), below.
- iii. If neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Media Company’s ad server, unless otherwise agreed by Agency and Media Company in writing.
- Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary. Nothing in this Section XIII(c) shall limit, replace or nullify any other obligation set forth in this Agreement (including this Addendum).
- Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Media Company and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Agency reserves the right to either:
- i. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Agency and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
- ii. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
- Measurement Methodology. Media Company will make reasonable efforts to publish, and Agency will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
- Third Party Ad Server Malfunction. Where Agency is using a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, Agency will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Agency of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Agency will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Media Company is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, 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 Media Company to serve Ads until the Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company’s own advertisements or advertisements provided by a Third Party.
- Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Agency.
- Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
- Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
- Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. Each IO may be executed by electronic signature and exchanged by email in scanned or pdf format.
- Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of England and Wales. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely before the courts in London, England and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
- Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
- Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
- Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
Terms of Use
Effective September 16, 2020
DownloadTable of Contents
LoopMe Terms of Use
These Terms Of Use (the “Terms”) govern your (hereafter “ You”, “Your” use of this website and the products and services available at this website, www.loopme.com, and any related website linked to this URL address, including pages related to LoopMe’s services (collectively the “ Site”) and/or created, controlled or operated by LoopMe Limited (hereafter “LoopMe”). The Site features LoopMe proprietary technology in its various forms and other services LoopMe may make available from time to time (collectively, the “Service"). By accessing the Site or using any part of the Service, You agree to be bound by these Terms. If You do not agree to these Terms, then You may not access the Site or use the Service.
- General Use. Subject to these Terms, LoopMe hereby grants You a limited, non-exclusive, and non-transferable license to use the Site. You can simply visit and use the Site and you do not need to register with LoopMe to do so. We reserve the right to modify these Terms at any time. By continuing to access or use the Site or Service, You agree to such modifications.
- Privacy and Other Terms. Your use of the Site or Service is also governed by LoopMe’s Privacy Policy. By using the Site or Service, you agree to the terms set forth in that policy. Your use of LoopMe’s services will further be subject to other terms specific to those services.
- Intellectual Property and Takedown Notice.
- Disclaimer of Warranties and Limitation of Liability. LOOPME EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE SITE. EXCEPT FOR BODILY INJURY, IN NO EVENT WILL LOOPME OR ITS AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICE, AND THE DATA, WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE; (II) ANY UNAUTHORISED ACCESS TO OR USE OF THE SITES; OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $1,000. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN SIX (6) MONTHS AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. LOOPME DISCLAIMS ALL LIABILITY OF ANY KIND OF LOOPME'S AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU UNDERSTAND AND AGREE THAT YOUR SOLE RIGHT AND REMEDY AGAINST LOOPME IS TO DISCONTINUE USE OF THE SITE.
- Indemnity. You agree to indemnify, defend and hold harmless LoopMe, its parents, subsidiaries, affiliates, customers and vendors, and their respective officers, directors and employees from any liability, damage, cost, or fees (including reasonable attorneys' fees) arising from: (i) any claim or demand made by any third party due to or arising out of your access to the Site; (ii) your use of the Service or Site, and/or violation of the Terms; (iii) or the infringement by you, or any third party using your LoopMe account, of any intellectual property or other right of any person or entity.
- Governing Law.
- Termination. LoopMe, in its sole discretion, may terminate or suspend use of the Sites at any time for any reason or for no reason at all, without prior notice or liability to you. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
- Miscellaneous.
- Electronic Communications. Please send any questions or concerns regarding these Terms to legal@loopme.com. By communicating with us electronically you acknowledge that communications by email are not considered confidential.
Effective September 1, 2020 to September 16, 2020
DownloadTable of Contents
LoopMe Terms of Use
These Terms Of Use (the “Terms”) govern your (hereafter “ You”, “Your” use of this website and the products and services available at this website, www.loopme.com, and any related website linked to this URL address, including pages related to LoopMe’s services (collectively the “ Site”) and/or created, controlled or operated by LoopMe Limited (hereafter “LoopMe”). The Site features LoopMe proprietary technology in its various forms and other services LoopMe may make available from time to time (collectively, the “Service"). By accessing the Site or using any part of the Service, You agree to be bound by these Terms. If You do not agree to these Terms, then You may not access the Site or use the Service.
- General Use. Subject to these Terms, LoopMe hereby grants You a limited, non-exclusive, and non-transferable license to use the Site. You can simply visit and use the Site and you do not need to register with LoopMe to do so. We reserve the right to modify these Terms at any time. By continuing to access or use the Site or Service, You agree to such modifications.
- Privacy and Other Terms. Your use of the Site or Service is also governed by LoopMe’s Privacy Policy. By using the Site or Service, you agree to the terms set forth in that policy. Your use of LoopMe’s services will further be subject to other terms specific to those services.
- Intellectual Property and Takedown Notice.
- Disclaimer of Warranties and Limitation of Liability. LOOPME EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE SITE. EXCEPT FOR BODILY INJURY, IN NO EVENT WILL LOOPME OR ITS AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICE, AND THE DATA, WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE; (II) ANY UNAUTHORISED ACCESS TO OR USE OF THE SITES; OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $1,000. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN SIX (6) MONTHS AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. LOOPME DISCLAIMS ALL LIABILITY OF ANY KIND OF LOOPME'S AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU UNDERSTAND AND AGREE THAT YOUR SOLE RIGHT AND REMEDY AGAINST LOOPME IS TO DISCONTINUE USE OF THE SITE.
- Indemnity. You agree to indemnify, defend and hold harmless LoopMe, its parents, subsidiaries, affiliates, customers and vendors, and their respective officers, directors and employees from any liability, damage, cost, or fees (including reasonable attorneys' fees) arising from: (i) any claim or demand made by any third party due to or arising out of your access to the Site; (ii) your use of the Service or Site, and/or violation of the Terms; (iii) or the infringement by you, or any third party using your LoopMe account, of any intellectual property or other right of any person or entity.
- Governing Law.
- Termination. LoopMe, in its sole discretion, may terminate or suspend use of the Sites at any time for any reason or for no reason at all, without prior notice or liability to you. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
- Miscellaneous.
- Electronic Communications. Please send any questions or concerns regarding these Terms to legal@loopme.com. By communicating with us electronically you acknowledge that communications by email are not considered confidential.
Effective July 29, 2020 to September 1, 2020
DownloadTable of Contents
LoopMe Terms of Use
These Terms Of Use (the “Terms”) govern your (hereafter “ you”, “your” use of this website and the products and services available at this website, www.loopme.com, and any related website linked to this URL address, including pages related to LoopMe’s services (collectively the “ Site”) and/or created, controlled or operated by LoopMe Limited (hereafter “LoopMe”). The Site features LoopMe proprietary technology in its various forms and other services LoopMe may make available from time to time (collectively, the “Service"). By accessing the Site or using any part of the Service, You agree to be bound by these Terms. If You do not agree to these Terms, then You may not access the Site or use the Service.
- General Use.
Subject to these Terms, LoopMe hereby grants You a limited, non-exclusive, and non-transferable license to use the Site. You can simply visit and use the Site and you do not need to register with LoopMe to do so. We reserve the right to modify these Terms at any time. By continuing to access or use the Site or Service, You agree to such modifications.
- Privacy and Other Terms.
Your use of the Site or Service is also governed by LoopMe’s Privacy Policy. By using the Site or Service, you agree to the terms set forth in that policy. Your use of LoopMe’s services will further be subject to other terms specific to those services.
- Intellectual Property and Takedown Notice.
- Disclaimer of Warranties and Limitation of Liability. LOOPME EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE SITE. EXCEPT FOR BODILY INJURY, IN NO EVENT WILL LOOPME OR ITS AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICE, AND THE DATA, WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SITES; OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $1,000. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. LOOPME DISCLAIMS ALL LIABILITY OF ANY KIND OF LOOPME'S AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU UNDERSTAND AND AGREE THAT YOUR SOLE RIGHT AND REMEDY AGAINST LOOPME IS TO DISCONTINUE USE OF THE SITE.
- Indemnity. You agree to indemnify, defend and hold harmless LoopMe, its parents, subsidiaries, affiliates, customers and vendors, and their respective officers, directors and employees from any liability, damage, cost, or fees (including reasonable attorneys' fees) arising from: (i) any claim or demand made by any third party due to or arising out of your access to the Site; (ii) your use of the Service or Site, and/or violation of the Terms; (iii) or the infringement by you, or any third party using your LoopMe account, of any intellectual property or other right of any person or entity.
- Governing Law.
- Termination. LoopMe, in its sole discretion, may terminate or suspend use of the Sites at any time for any reason or for no reason at all, without prior notice or liability to you. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
- Miscellaneous.
- Electronic Communications. Please send any questions or concerns regarding these Terms to legal@loopme.com. By communicating with us electronically you acknowledge that communications by email are not considered confidential.
Effective July 14, 2020 to July 29, 2020
DownloadTable of Contents
LoopMe Terms of Use
These Terms Of Use (the “Terms”) govern your (hereafter “ you”, “your” use of this website and the products and services available at this website, www.loopme.com, and any related website linked to this URL address, including pages related to LoopMe’s services (collectively the “ Site”) and/or created, controlled or operated by LoopMe Limited (hereafter “LoopMe”). The Site features LoopMe proprietary technology in its various forms and other services LoopMe may make available from time to time (collectively, the “Service"). By accessing the Site or using any part of the Service, You agree to be bound by these Terms. If You do not agree to these Terms, then You may not access the Site or use the Service.
- General Use.
Subject to these Terms, LoopMe hereby grants You a limited, non-exclusive, and non-transferable license to use the Site. You can simply visit and use the Site and you do not need to register with LoopMe to do so. We reserve the right to modify these Terms at any time. By continuing to access or use the Site or Service, You agree to such modifications.
- Privacy and Other Terms.
Your use of the Site or Service is also governed by LoopMe’s Privacy Policy. By using the Site or Service, you agree to the terms set forth in that policy. Your use of LoopMe’s services will further be subject to other terms specific to those services.
- Intellectual Property and Takedown Notice.
- Intellectual Property. You acknowledge and agree that all of our trademarks, logos, copyrights, and all other intellectual property rights in all material or content contained within the Site shall remain at all times vested in LoopMe. You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or its materials in any manner. In cases where we use material or content under authority from a third party, such rights remain vested in the owner of such material or content. All Site content and all materials contained within the Site are owned by LoopMe or used by LoopMe under authorisation, and are protected by applicable trademark and copyright laws.
- Notice and Takedown. LoopMe does not control the content on its network however, we require our advertisers to comply with our Content Guidelines. Despite various safeguards, LoopMe recognises that from time to time (i) advertiser content may be in breach of relevant copyright laws, contain references which may be regarded as defamatory, promote fake news and/or contain fraudulent or misleading information or links; or (ii) advertisements may appear alongside content which the advertiser determines is not brand safe or per their guidelines. If you have identified content of this nature, please email legal@loopme.com with the following information (i) your contact details (ii) the full details of the material in question (iii) the URL where you found the material and; (iv) the reason for your request e.g. complaint about defamatory content. Upon receipt of your notification, LoopMe will comply with the following Notice and Takedown procedure: (a) LoopMe will endeavour to acknowledge receipt of your complain by email and within 48 hours of receipt. (b) Following confirmation of receipt, LoopMe will commence an investigation to access the validity and plausibility of the complaint. If LoopMe determines that the initial complain may be valid pending further investigation, LoopMe may temporarily suspend or remove a particular campaign from its network. (c) LoopMe may contact the relevant advertiser who is responsible for the content, it relevant. If LoopMe does so, the advertiser will be notified that their content is subject to a complaint, under what grounds and will be encouraged to address the complaints concerned. If relevant, the complaint and the advertiser will be encouraged to resolve the issue swiftly and amicably and to the satisfaction of both parties. (d) Following the finalization of LoopMe investigation, LoopMe may: - allow the advertiser to continue to display the content unchanged; or - allow the advertiser to continue to display the content with changes; or - permanently remove the content from its network and usually within 48 hours of LoopMe determining this is the appropriate course of action.
- Disclaimer of Warranties and Limitation of Liability. LOOPME EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE SITE. EXCEPT FOR BODILY INJURY, IN NO EVENT WILL LOOPME OR ITS AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICE, AND THE DATA, WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SITES; OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $1,000. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. LOOPME DISCLAIMS ALL LIABILITY OF ANY KIND OF LOOPME'S AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU UNDERSTAND AND AGREE THAT YOUR SOLE RIGHT AND REMEDY AGAINST LOOPME IS TO DISCONTINUE USE OF THE SITE.
- Indemnity. You agree to indemnify, defend and hold harmless LoopMe, its parents, subsidiaries, affiliates, customers and vendors, and their respective officers, directors and employees from any liability, damage, cost, or fees (including reasonable attorneys' fees) arising from: (i) any claim or demand made by any third party due to or arising out of your access to the Site; (ii) your use of the Service or Site, and/or violation of the Terms; (iii) or the infringement by you, or any third party using your LoopMe account, of any intellectual property or other right of any person or entity.
- Governing Law.
- These Terms shall be governed by and construed in accordance with the laws of England and Wales, without regard to its choice of law provisions. You agree to submit to the exclusive jurisdiction of the English courts.
- To the fullest extent of the law, you agree that any claim or cause of action arising from or relating to use of the Site or these Terms must be filed within one (1) year after such claim or cause of action arose, or be forever barred
- Under California Civil Code Section 1789.3, residents of California who use the Site are entitled to know that they may file grievances and complaints with: Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at dca@dca.ca.gov.
- Termination. LoopMe, in its sole discretion, may terminate or suspend use of the Sites at any time for any reason or for no reason at all, without prior notice or liability to you. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
- Miscellaneous.
- We are not responsible for the availability of any websites, applications, or other offerings owned or controlled by third-parties. We do not endorse and are not responsible or liable for, directly or indirectly, the operation of such third-party websites, their privacy practices and/or the content (including misrepresentative or defamatory content), including (without limitation) any advertising, products, or other materials or services on or available from such websites or resources; nor for any damage, loss, or offense caused or alleged to be caused by, or in connection with, the use of or reliance on any such content, goods, or services available on such third-party external sites or resources.
- When using the Site, you agree to comply with all laws in your jurisdiction (including but not limited to copyright laws) and not use the Site for any purpose that is unlawful or prohibited by these Terms. By way of example, you shall not: (i) post or transmit any communication or solicitation intended to obtain password, account, or private information from any LoopMe user; (ii) create or submit spam to any LoopMe users or any URL; (iii) use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission; (iv) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site or Service; and (v) bypass any measures we may use to prevent or restrict access to the Site.
- If any part of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed to be severable from these Terms and shall not affect the validity and enforceability of any of the remaining provisions of the Terms.
- Electronic Communications. Please send any questions or concerns regarding these Terms to legal@loopme.com. By communicating with us electronically you acknowledge that communications by email are not considered confidential.
Effective July 14, 2020 to July 14, 2020
DownloadTable of Contents
LoopMe Terms of Use
These Terms Of Use (the “Terms”) govern your (hereafter “ you”, “your” use of this website and the products and services available at this website, www.loopme.com, and any related website linked to this URL address, including pages related to LoopMe’s services (collectively the “ Site”) and/or created, controlled or operated by LoopMe Limited (hereafter “LoopMe”). The Site features LoopMe proprietary technology in its various forms and other services LoopMe may make available from time to time (collectively, the “Service"). By accessing the Site or using any part of the Service, You agree to be bound by these Terms. If You do not agree to these Terms, then You may not access the Site or use the Service.
- General Use.
Subject to these Terms, LoopMe hereby grants You a limited, non-exclusive, and non-transferable license to use the Site. You can simply visit and use the Site and you do not need to register with LoopMe to do so. We reserve the right to modify these Terms at any time. By continuing to access or use the Site or Service, You agree to such modifications.
- Privacy and Other Terms.
Your use of the Site or Service is also governed by LoopMe’s Privacy Policy. By using the Site or Service, you agree to the terms set forth in that policy. Your use of LoopMe’s services will further be subject to other terms specific to those services.
- Intellectual Property and Takedown Notice.
- Intellectual Property. You acknowledge and agree that all of our trademarks, logos, copyrights, and all other intellectual property rights in all material or content contained within the Site shall remain at all times vested in LoopMe. You may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Site or its materials in any manner. In cases where we use material or content under authority from a third party, such rights remain vested in the owner of such material or content. All Site content and all materials contained within the Site are owned by LoopMe or used by LoopMe under authorisation, and are protected by applicable trademark and copyright laws.
- Notice and Takedown. LoopMe does not control the content on its network however, we require our advertisers to comply with our Content Guidelines. Despite various safeguards, LoopMe recognises that from time to time (i) advertiser content may be in breach of relevant copyright laws, contain references which may be regarded as defamatory, promote fake news and/or contain fraudulent or misleading information or links; or (ii) advertisements may appear alongside content which the advertiser determines is not brand safe or per their guidelines. If you have identified content of this nature, please email legal@loopme.com with the following information (i) your contact details (ii) the full details of the material in question (iii) the URL where you found the material and; (iv) the reason for your request e.g. complaint about defamatory content. Upon receipt of your notification, LoopMe will comply with the following Notice and Takedown procedure: (a) LoopMe will endeavour to acknowledge receipt of your complain by email and within 48 hours of receipt. (b) Following confirmation of receipt, LoopMe will commence an investigation to access the validity and plausibility of the complaint. If LoopMe determines that the initial complain may be valid pending further investigation, LoopMe may temporarily suspend or remove a particular campaign from its network. (c) LoopMe may contact the relevant advertiser who is responsible for the content, it relevant. If LoopMe does so, the advertiser will be notified that their content is subject to a complaint, under what grounds and will be encouraged to address the complaints concerned. If relevant, the complaint and the advertiser will be encouraged to resolve the issue swiftly and amicably and to the satisfaction of both parties. (d) Following the finalization of LoopMe investigation, LoopMe may: - allow the advertiser to continue to display the content unchanged; or - allow the advertiser to continue to display the content with changes; or - permanently remove the content from its network and usually within 48 hours of LoopMe determining this is the appropriate course of action.
- Disclaimer of Warranties and Limitation of Liability. LOOPME EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH THE SITE. EXCEPT FOR BODILY INJURY, IN NO EVENT WILL LOOPME OR ITS AGENTS BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SITE, THE SERVICE, AND THE DATA, WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SITES; OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) $1,000. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. LOOPME DISCLAIMS ALL LIABILITY OF ANY KIND OF LOOPME'S AGENTS. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. YOU UNDERSTAND AND AGREE THAT YOUR SOLE RIGHT AND REMEDY AGAINST LOOPME IS TO DISCONTINUE USE OF THE SITE.
- Indemnity. You agree to indemnify, defend and hold harmless LoopMe, its parents, subsidiaries, affiliates, customers and vendors, and their respective officers, directors and employees from any liability, damage, cost, or fees (including reasonable attorneys' fees) arising from: (i) any claim or demand made by any third party due to or arising out of your access to the Site; (ii) your use of the Service or Site, and/or violation of the Terms; (iii) or the infringement by you, or any third party using your LoopMe account, of any intellectual property or other right of any person or entity.
- Governing Law.
- These Terms shall be governed by and construed in accordance with the laws of England and Wales, without regard to its choice of law provisions. You agree to submit to the exclusive jurisdiction of the English courts.
- To the fullest extent of the law, you agree that any claim or cause of action arising from or relating to use of the Site or these Terms must be filed within one (1) year after such claim or cause of action arose, or be forever barred
- Under California Civil Code Section 1789.3, residents of California who use the Site are entitled to know that they may file grievances and complaints with: Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs, in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210, or by email at dca@dca.ca.gov.
- Termination. LoopMe, in its sole discretion, may terminate or suspend use of the Sites at any time for any reason or for no reason at all, without prior notice or liability to you. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
- Miscellaneous.
- We are not responsible for the availability of any websites, applications, or other offerings owned or controlled by third-parties. We do not endorse and are not responsible or liable for, directly or indirectly, the operation of such third-party websites, their privacy practices and/or the content (including misrepresentative or defamatory content), including (without limitation) any advertising, products, or other materials or services on or available from such websites or resources; nor for any damage, loss, or offense caused or alleged to be caused by, or in connection with, the use of or reliance on any such content, goods, or services available on such third-party external sites or resources.
- When using the Site, you agree to comply with all laws in your jurisdiction (including but not limited to copyright laws) and not use the Site for any purpose that is unlawful or prohibited by these Terms. By way of example, you shall not: (i) post or transmit any communication or solicitation intended to obtain password, account, or private information from any LoopMe user; (ii) create or submit spam to any LoopMe users or any URL; (iii) use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission; (iv) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site or Service; and (v) bypass any measures we may use to prevent or restrict access to the Site.
- If any part of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed to be severable from these Terms and shall not affect the validity and enforceability of any of the remaining provisions of the Terms.
- Electronic Communications. Please send any questions or concerns regarding these Terms to legal@loopme.com. By communicating with us electronically you acknowledge that communications by email are not considered confidential.
CCPA Glossary
Effective September 1, 2020
DownloadTable of Contents
Statutory category | Definition (categories may overlap) |
Commercial Information | Records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies. |
Financial Information | Bank account number, debit or credit card numbers, insurance policy number, and other financial information. |
Geolocation Data | Precise location e.g., information derived from GPS coordinates or telemetry data. |
Identifiers | Real name, alias, postal address, unique personal identifier, customer number, email address, account name, social security number, driver’s license number, passport number, or other similar identifiers. |
Inferences | The derivation of information, data, assumptions, or conclusions from any other category of Personal Information to create a profile about a person reflecting the person’s preferences, characteristics, psychological trends, predispositions, behaviour, attitudes, intelligence, abilities and aptitudes. |
Internet or Network Information | Browsing history, search history, and information regarding a person’s interaction with an Internet website, application, or advertisement. |
Online Identifiers | An online identifier or other persistent identifier that can be used to recognise a person, family or device, over time and across different services, including but not limited to, a device identifier; an Internet Protocol address; cookies, beacons, pixel tags, mobile ad identifiers, or similar technology; customer number, unique pseudonym, or user alias; telephone numbers, or other forms of persistent or probabilistic identifiers (i.e., the identification of a person or a device to a degree of certainty of more probable than not) that can be used to identify a particular person or device. |
Effective August 27, 2020 to September 1, 2020
DownloadTable of Contents
Statutory category | Definition (categories may overlap) |
Commercial Information | Records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies. |
Financial Information | Bank account number, debit or credit card numbers, insurance policy number, and other financial information. |
Geolocation Data | Precise location, e.g., derived from GPS coordinates or telemetry data |
Identifiers | Real name, alias, postal address, unique personal identifier, customer number, email address, account name, social security number, driver’s license number, passport number, or other similar identifiers. |
Inferences | The derivation of information, data, assumptions, or conclusions from any other category of Personal Information to create a profile about a person reflecting the person’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities and aptitudes. |
Internet or Network Information | Browsing history, search history, and information regarding a person’s interaction with an Internet website, application, or advertisement. |
Online Identifiers | An online identifier or other persistent identifier that can be used to recognize a person, family or device, over time and across different services, including but not limited to, a device identifier; an Internet Protocol address; cookies, beacons, pixel tags, mobile ad identifiers, or similar technology; customer number, unique pseudonym, or user alias; telephone numbers, or other forms of persistent or probabilistic identifiers (i.e., the identification of a person or a device to a degree of certainty of more probable than not) that can be used to identify a particular person or device. |
LoopMe Policies
Effective November 22, 2022
DownloadTable of Contents
- Fake News: Content that seeks to intentionally deceive the reader into believing something that is not true or that they are reading legitimate editorial content or fact-based news.
- Firearms and weapons: Any content related to weapons, ammunition, firearms, gun ranges, paintball guns, guns, air guns, explosives, bombs, knives or weapons of any kind and/or fireworks.
- Hate speech: Any content which insults, discriminates, defames or threatens an individual or groups of individuals based upon, including but not limited to, that individual’s race, ethnicity, national origin, caste, gender, gender identity, sex, religious affiliation, age, serious disease and/or disability.
- Illegal activity or legally questionable activity: Any content which promotes, refers to and/or sells illegal products and services, products or services of questionable legality, violates the privacy rights and any other rights of others and/or that facilitates illegal activity.
- Intellectual property infringement: Any content which infringes any third-party intellectual property rights (including but not limited to, the misappropriation of a trademark or logo, distribution of copyrighted material without the express authorisation of the owner and/or sale or promotion of counterfeit goods).
- Misleading content: Any content based on fraudulent or deceptive claims. All claims must be substantiated, clear, and accurate.
- Questionable business opportunities: Any content which may be or amounts to a ponzi schemes, pyramid schemes, get-rich-quick schemes, free money offers or other similar money-making opportunities.
- Religious content: Any content regarding religion or philosophical belief, any ritual of a specific religion, religious agendas and/or events. Content cannot advocate for or promote one religion over another.
- Sexual, obscene, or pornographic material: Any content which contains adult, mature, and/or sexually-explicit products and services, gentlemen’s clubs, escort services, erotic bookstores, nudity, graphic language, and excessive profanity. Any image, graphic or content that is sexual or pornographic in nature, obscene, includes nudity, sexually suggestive text, images or situations or otherwise uses inappropriate or provocative language.
- Unsecure content: Any content which contains adware, spyware, P2P application, malware, spyware, viruses, worms, Trojan horses or other harmful computer code that interferes with or disrupts the integrity or performance of the LoopMe platform and services.
- Violence & graphic content: Any content which, in LoopMe’s sole discretion, is violent, graphic, objectionable, disrespectful, vulgar or offensive, including images and language.
- Alcohol: LoopMe allows content related to alcohol, provided that such content does not:
- target individuals below the legal drinking age in the respective jurisdiction where such content is displayed;
- imply that drinking alcohol can improve social, sexual, professional, intellectual or athletic standing;
- imply that alcohol provides health and therapeutic benefits;
- portray excessive drinking favourably or featuring binge or competition drinking;
- show alcohol consumption in conjunction with the operation of a vehicle of any kind, the operation of machinery, or the performance of any task requiring alertness or dexterity; and/or
- conflict with any applicable federal, state and local laws and regulatory guidelines relating to alcohol in the jurisdiction which the content is displayed.
- Children and minors: Any content that specifically targets minor need to comply with all applicable laws and requires prior express approval by LoopMe.
- Cryptocurrency: Any content which promotes Cryptocurrency must comply with all applicable laws and requires prior express approval by LoopMe.
- Dating and personals: Content must not promote one-night stands, hook-ups, and sexual encounters, infidelity and/or casual sex.
- Financial services: Content must comply with any and all guidance provided by financial governing bodies in the jurisdiction in which the content is displayed.
- Gambling: Content relating to any Gambling activity: (i) must comply with all applicable laws and regulations in the relevant jurisdiction(s); and (ii) requires prior written approval from LoopMe legal. Content relating to State run lotteries is acceptable and does not require prior LoopMe legal approval, provided that the content complies with all applicable laws and regulations in relevant jurisdictions.
- "Media and negative earned media: Direct competitors cannot promote negative earned media content that defames or otherwise compromises an industry competitor without clear disclosure.
- Medications and healthcare products: Content relating to Medications and Healthcare products are allowed except for content relating to:
- recreational drugs;
- erectile or sexual enhancers;
- paternity tests;
- controlled substances such as steroids;
- anabolic or hormones;
- any product that claims to have a similar effect to illegal substances, and weight loss drugs that make unrealistic claims;
- prescription drugs-based content (unless expressly approved by LoopMe); and/or
- online pharmacies selling medicines either with or without prescription and informative websites related to medicines (except if they are certified as per local applicable regulation and expressly approved by LoopMe).
- Political: Political content is content regarding political organisations, candidates, political initiatives and/or events. LoopMe supports responsible political advertising and requires all political content to comply with the local legal requirements, including campaign and election laws and mandated ‘election silence periods’ for any geographic areas that they target. All political content and ads must have clear disclosure (i.e., Promoted by [political party]). Political content must not:
- portray false, untrue or misleading political content (LoopMe reserves the right to require substantiation of any factual claims);
- exclude certain political parties without a legal basis for exclusion;
- contain inflammatory political content;
- portray voting or census participation as useless and/or meaningless and advise users not to vote or participate in a census; and/or
- be paid for directly or indirectly by a non-resident foreign national or entity.
- Surveys: If using LoopMe’s technology for the purposes of conducting a survey, you are prohibited from collecting the following information:
- name, email address, address;
- financial status or account information;
- racial or ethnic information;
- health or medical history or information;
- sexual behaviour or orientation;
- information about children under the age of 13;
- political opinions or beliefs;
- trade union membership; and/or
- religious or philosophical beliefs.
- Tobacco and drugs:
- Any content which promotes smoking paraphernalia, e-cigarettes, vaping, tobacco, cigars, tobacco pipes, rolling papers, smokeless tobacco must be expressly approved in writing by LoopMe; and/or
- Cannabis and CBD related content must comply with the individual State and/or Country restrictions relating to cannabis and CBD.
- Windows Dialog or Alert Style: Any creative that a user might mistake for an OS or application-level notification rather than an advertisement, this includes, but is not limited to, deceptive ads that resemble user interface elements (e.g., text boxes) and creatives that mimic buttons or icons that claim a functionality that is not there (e.g., play, chat, wink, friends, search buttons);
- Expandable (Automatic): Ads that automatically expand without the user’s engagement or action (e.g., click, touch);
- Auto-redirect: Ads that automatically redirect the user without the user’s engagement or action (e.g., click, touch);
- Downloads: Ads that do not ask the user for permission before initiating any downloads before initiating and downloads/installations/services/fees. This includes Click-to-Call and Click-to-Subscribe ads that do not include an intermediary landing page or other prompt that clearly explains the terms and/or fees associated with the call or subscription; and/or
- Operation of network: Ads which interfere with the operation of LoopMe’s network. For example, use that interferes with the normal operation of an end user’s device, or otherwise creates a safety or security risk to the LoopMe platform, our customers, or our end users, is prohibited.
- LoopMe’s Process
- Human Verification
- Mobile Web
- URL working;
- Site category;
- Last update;
- Advertising visible on the page;
- Videos on website with sound on automatically;
- Videos running at the same time;
- Local market Alexa ranking;
- Social media channels;
- Incentivised ads;
- Social media channels; and/or
- Site content.
- URL not working;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- Page content not updated in the last 7 days;
- Videos on website running with sound on;
- Multiple videos running at the same time; and/or
- Not in local market Alexa top 50,000.
- Applications
- Whether the app is available on AppStore or GooglePlay;
- Site category;
- Last update;
- Advertising visible on the applications;
- AppAnnie ranking; and/or
- Incentivised ads.
- App not available on AppStore or GooglePlay;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- App not updated during the last 60 days;
- Advertising not visible on the applications; and/or
- Not ranked on AppAnnie.
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Domain Block Lists
- Allowed List
- Technological Approach
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Third Party Verification
- Takedown Policy
Effective October 3, 2022 to November 22, 2022
DownloadTable of Contents
- Fake News: Content that seeks to intentionally deceive the reader into believing something that is not true or that they are reading legitimate editorial content or fact-based news.
- Firearms and weapons: Any content related to weapons, ammunition, firearms, gun ranges, paintball guns, guns, air guns, explosives, bombs, knives or weapons of any kind and/or fireworks.
- Hate speech: Any content which insults, discriminates, defames or threatens an individual or groups of individuals based upon, including but not limited to, that individual’s race, ethnicity, national origin, caste, gender, gender identity, sex, religious affiliation, age, serious disease and/or disability.
- Illegal activity or legally questionable activity: Any content which promotes, refers to and/or sells illegal products and services, products or services of questionable legality, violates the privacy rights and any other rights of others and/or that facilitates illegal activity.
- Intellectual property infringement: Any content which infringes any third-party intellectual property rights (including but not limited to, the misappropriation of a trademark or logo, distribution of copyrighted material without the express authorisation of the owner and/or sale or promotion of counterfeit goods).
- Misleading content: Any content based on fraudulent or deceptive claims. All claims must be substantiated, clear, and accurate.
- Questionable business opportunities: Any content which may be or amounts to a ponzi schemes, pyramid schemes, get-rich-quick schemes, free money offers or other similar money-making opportunities.
- Religious content: Any content regarding religion or philosophical belief, any ritual of a specific religion, religious agendas and/or events. Content cannot advocate for or promote one religion over another.
- Sexual, obscene, or pornographic material: Any content which contains adult, mature, and/or sexually-explicit products and services, gentlemen’s clubs, escort services, erotic bookstores, nudity, graphic language, and excessive profanity. Any image, graphic or content that is sexual or pornographic in nature, obscene, includes nudity, sexually suggestive text, images or situations or otherwise uses inappropriate or provocative language.
- Unsecure content: Any content which contains adware, spyware, P2P application, malware, spyware, viruses, worms, Trojan horses or other harmful computer code that interferes with or disrupts the integrity or performance of the LoopMe platform and services.
- Violence & graphic content: Any content which, in LoopMe’s sole discretion, is violent, graphic, objectionable, disrespectful, vulgar or offensive, including images and language.
- Alcohol: LoopMe allows content related to alcohol, provided that such content does not:
- target individuals below the legal drinking age in the respective jurisdiction where such content is displayed;
- imply that drinking alcohol can improve social, sexual, professional, intellectual or athletic standing;
- imply that alcohol provides health and therapeutic benefits;
- portray excessive drinking favourably or featuring binge or competition drinking;
- show alcohol consumption in conjunction with the operation of a vehicle of any kind, the operation of machinery, or the performance of any task requiring alertness or dexterity; and/or
- conflict with any applicable federal, state and local laws and regulatory guidelines relating to alcohol in the jurisdiction which the content is displayed.
- Children and minors: Any content that specifically targets minor need to comply with all applicable laws and requires prior express approval by LoopMe.
- Cryptocurrency: Any content which promotes Cryptocurrency must comply with all applicable laws and requires prior express approval by LoopMe.
- Dating and personals: Content must not promote one-night stands, hook-ups, and sexual encounters, infidelity and/or casual sex.
- Financial services: Content must comply with any and all guidance provided by financial governing bodies in the jurisdiction in which the content is displayed.
- Gambling: Content relating to any Gambling activity: (i) must comply with all applicable laws and regulations in the relevant jurisdiction(s); and (ii) requires prior written approval from LoopMe legal. Content relating to State run lotteries is acceptable and does not require prior LoopMe legal approval, provided that the content complies with all applicable laws and regulations in relevant jurisdictions.
- "Media and negative earned media: Direct competitors cannot promote negative earned media content that defames or otherwise compromises an industry competitor without clear disclosure.
- Medications and healthcare products: Content relating to Medications and Healthcare products are allowed except for content relating to:
- recreational drugs;
- erectile or sexual enhancers;
- paternity tests;
- controlled substances such as steroids;
- anabolic or hormones;
- any product that claims to have a similar effect to illegal substances, and weight loss drugs that make unrealistic claims;
- prescription drugs-based content (unless expressly approved by LoopMe); and/or
- online pharmacies selling medicines either with or without prescription and informative websites related to medicines (except if they are certified as per local applicable regulation and expressly approved by LoopMe).
- Political: Political content is content regarding political organisations, candidates, political initiatives and/or events. LoopMe supports responsible political advertising and requires all political content to comply with the local legal requirements, including campaign and election laws and mandated ‘election silence periods’ for any geographic areas that they target. All political content and ads must have clear disclosure (i.e., Promoted by [political party]). Political content must not:
- portray false, untrue or misleading political content (LoopMe reserves the right to require substantiation of any factual claims);
- exclude certain political parties without a legal basis for exclusion;
- contain inflammatory political content;
- portray voting or census participation as useless and/or meaningless and advise users not to vote or participate in a census; and/or
- be paid for directly or indirectly by a non-resident foreign national or entity.
- Surveys: If using LoopMe’s technology for the purposes of conducting a survey, you are prohibited from collecting the following information:
- name, email address, address;
- financial status or account information;
- racial or ethnic information;
- health or medical history or information;
- sexual behaviour or orientation;
- information about children under the age of 13;
- political opinions or beliefs;
- trade union membership; and/or
- religious or philosophical beliefs.
- Tobacco and drugs:
- Any content which promotes smoking paraphernalia, e-cigarettes, vaping, tobacco, cigars, tobacco pipes, rolling papers, smokeless tobacco must be expressly approved in writing by LoopMe; and/or
- Cannabis and CBD related content must comply with the individual State and/or Country restrictions relating to cannabis and CBD.
- Windows Dialog or Alert Style: Any creative that a user might mistake for an OS or application-level notification rather than an advertisement, this includes, but is not limited to, deceptive ads that resemble user interface elements (e.g., text boxes) and creatives that mimic buttons or icons that claim a functionality that is not there (e.g., play, chat, wink, friends, search buttons);
- Expandable (Automatic): Ads that automatically expand without the user’s engagement or action (e.g., click, touch);
- Auto-redirect: Ads that automatically redirect the user without the user’s engagement or action (e.g., click, touch);
- Downloads: Ads that do not ask the user for permission before initiating any downloads before initiating and downloads/installations/services/fees. This includes Click-to-Call and Click-to-Subscribe ads that do not include an intermediary landing page or other prompt that clearly explains the terms and/or fees associated with the call or subscription; and/or
- Operation of network: Ads which interfere with the operation of LoopMe’s network. For example, use that interferes with the normal operation of an end user’s device, or otherwise creates a safety or security risk to the LoopMe platform, our customers, or our end users, is prohibited.
- LoopMe’s Process
- Human Verification
- Mobile Web
- URL working;
- Site category;
- Last update;
- Advertising visible on the page;
- Videos on website with sound on automatically;
- Videos running at the same time;
- Local market Alexa ranking;
- Social media channels;
- Incentivised ads;
- Social media channels; and/or
- Site content.
- URL not working;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- Page content not updated in the last 7 days;
- Videos on website running with sound on;
- Multiple videos running at the same time; and/or
- Not in local market Alexa top 50,000.
- Applications
- Whether the app is available on AppStore or GooglePlay;
- Site category;
- Last update;
- Advertising visible on the applications;
- AppAnnie ranking; and/or
- Incentivised ads.
- App not available on AppStore or GooglePlay;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- App not updated during the last 60 days;
- Advertising not visible on the applications; and/or
- Not ranked on AppAnnie.
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Domain Block Lists
- Allowed List
- Technological Approach
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Third Party Verification
- Takedown Policy
Effective February 1, 2022 to October 3, 2022
DownloadTable of Contents
- Fake News: Content that seeks to intentionally deceive the reader into believing something that is not true or that they are reading legitimate editorial content or fact-based news.
- Firearms and weapons: Any content related to weapons, ammunition, firearms, gun ranges, paintball guns, guns, air guns, explosives, bombs, knives or weapons of any kind and/or fireworks.
- Hate speech: Any content which insults, discriminates, defames or threatens an individual or groups of individuals based upon, including but not limited to, that individual’s race, ethnicity, national origin, caste, gender, gender identity, sex, religious affiliation, age, serious disease and/or disability.
- Illegal activity or legally questionable activity: Any content which promotes, refers to and/or sells illegal products and services, products or services of questionable legality, violates the privacy rights and any other rights of others and/or that facilitates illegal activity.
- Intellectual property infringement: Any content which infringes any third-party intellectual property rights (including but not limited to, the misappropriation of a trademark or logo, distribution of copyrighted material without the express authorisation of the owner and/or sale or promotion of counterfeit goods).
- Misleading content: Any content based on fraudulent or deceptive claims. All claims must be substantiated, clear, and accurate.
- Questionable business opportunities: Any content which may be or amounts to a ponzi schemes, pyramid schemes, get-rich-quick schemes, free money offers or other similar money-making opportunities.
- Religious content: Any content regarding religion or philosophical belief, any ritual of a specific religion, religious agendas and/or events. Content cannot advocate for or promote one religion over another.
- Sexual, obscene, or pornographic material: Any content which contains adult, mature, and/or sexually-explicit products and services, gentlemen’s clubs, escort services, erotic bookstores, nudity, graphic language, and excessive profanity. Any image, graphic or content that is sexual or pornographic in nature, obscene, includes nudity, sexually suggestive text, images or situations or otherwise uses inappropriate or provocative language.
- Unsecure content: Any content which contains adware, spyware, P2P application, malware, spyware, viruses, worms, Trojan horses or other harmful computer code that interferes with or disrupts the integrity or performance of the LoopMe platform and services.
- Violence & graphic content: Any content which, in LoopMe’s sole discretion, is violent, graphic, objectionable, disrespectful, vulgar or offensive, including images and language.
- Alcohol: LoopMe allows content related to alcohol, provided that such content does not:
- target individuals below the legal drinking age in the respective jurisdiction where such content is displayed;
- imply that drinking alcohol can improve social, sexual, professional, intellectual or athletic standing;
- imply that alcohol provides health and therapeutic benefits;
- portray excessive drinking favourably or featuring binge or competition drinking;
- show alcohol consumption in conjunction with the operation of a vehicle of any kind, the operation of machinery, or the performance of any task requiring alertness or dexterity; and/or
- conflict with any applicable federal, state and local laws and regulatory guidelines relating to alcohol in the jurisdiction which the content is displayed.
- Children and minors: Any content that specifically targets minor need to comply with all applicable laws and requires prior express approval by LoopMe.
- Cryptocurrency: Any content which promotes Cryptocurrency must comply with all applicable laws and requires prior express approval by LoopMe.
- Dating and personals: Content must not promote one-night stands, hook-ups, and sexual encounters, infidelity and/or casual sex.
- Financial services: Content must comply with any and all guidance provided by financial governing bodies in the jurisdiction in which the content is displayed.
- Gambling: Content relating to any Gambling activity: (i) must comply with all applicable laws and regulations in the relevant jurisdiction(s); and (ii) requires prior written approval from LoopMe legal. Content relating to State run lotteries is acceptable and does not require prior LoopMe legal approval, provided that the content complies with all applicable laws and regulations in relevant jurisdictions.
- "Media and negative earned media: Direct competitors cannot promote negative earned media content that defames or otherwise compromises an industry competitor without clear disclosure.
- Medications and healthcare products: Content relating to Medications and Healthcare products are allowed except for content relating to:
- recreational drugs;
- erectile or sexual enhancers;
- paternity tests;
- controlled substances such as steroids;
- anabolic or hormones;
- any product that claims to have a similar effect to illegal substances, and weight loss drugs that make unrealistic claims;
- prescription drugs-based content (unless expressly approved by LoopMe); and/or
- online pharmacies selling medicines either with or without prescription and informative websites related to medicines (except if they are certified as per local applicable regulation and expressly approved by LoopMe).
- Political: Political content is content regarding political organisations, candidates, political initiatives and/or events. LoopMe supports responsible political advertising and requires all political content to comply with the local legal requirements, including campaign and election laws and mandated ‘election silence periods’ for any geographic areas that they target. All political content and ads must have clear disclosure (i.e., Promoted by [political party]). Political content must not:
- portray false, untrue or misleading political content (LoopMe reserves the right to require substantiation of any factual claims);
- exclude certain political parties without a legal basis for exclusion;
- contain inflammatory political content;
- portray voting or census participation as useless and/or meaningless and advise users not to vote or participate in a census; and/or
- be paid for directly or indirectly by a non-resident foreign national or entity.
- Surveys: If using LoopMe’s technology for the purposes of conducting a survey, you are prohibited from collecting the following information:
- name, email address, address;
- financial status or account information;
- racial or ethnic information;
- health or medical history or information;
- sexual behaviour or orientation;
- information about children under the age of 13;
- political opinions or beliefs;
- trade union membership; and/or
- religious or philosophical beliefs.
- Tobacco and drugs:
- Any content which promotes smoking paraphernalia, e-cigarettes, vaping, tobacco, cigars, tobacco pipes, rolling papers, smokeless tobacco must be expressly approved in writing by LoopMe; and/or
- Cannabis and CBD related content must comply with the individual State and/or Country restrictions relating to cannabis and CBD.
- Windows Dialog or Alert Style: Any creative that a user might mistake for an OS or application-level notification rather than an advertisement, this includes, but is not limited to, deceptive ads that resemble user interface elements (e.g., text boxes) and creatives that mimic buttons or icons that claim a functionality that is not there (e.g., play, chat, wink, friends, search buttons);
- Expandable (Automatic): Ads that automatically expand without the user’s engagement or action (e.g., click, touch);
- Auto-redirect: Ads that automatically redirect the user without the user’s engagement or action (e.g., click, touch);
- Downloads: Ads that do not ask the user for permission before initiating any downloads before initiating and downloads/installations/services/fees. This includes Click-to-Call and Click-to-Subscribe ads that do not include an intermediary landing page or other prompt that clearly explains the terms and/or fees associated with the call or subscription; and/or
- Operation of network: Ads which interfere with the operation of LoopMe’s network. For example, use that interferes with the normal operation of an end user’s device, or otherwise creates a safety or security risk to the LoopMe platform, our customers, or our end users, is prohibited.
- LoopMe’s Process
- Human Verification
- Mobile Web
- URL working;
- Site category;
- Last update;
- Advertising visible on the page;
- Videos on website with sound on automatically;
- Videos running at the same time;
- Local market Alexa ranking;
- Social media channels;
- Incentivised ads;
- Social media channels; and/or
- Site content.
- URL not working;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- Page content not updated in the last 7 days;
- Videos on website running with sound on;
- Multiple videos running at the same time; and/or
- Not in local market Alexa top 50,000.
- Applications
- Whether the app is available on AppStore or GooglePlay;
- Site category;
- Last update;
- Advertising visible on the applications;
- AppAnnie ranking; and/or
- Incentivised ads.
- App not available on AppStore or GooglePlay;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- App not updated during the last 60 days;
- Advertising not visible on the applications; and/or
- Not ranked on AppAnnie.
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Domain Block Lists
- Allowed List
- Technological Approach
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Third Party Verification
- Takedown Policy
Effective January 19, 2022 to February 1, 2022
DownloadTable of Contents
- Fake News: Content that seeks to intentionally deceive the reader into believing something that is not true or that they are reading legitimate editorial content or fact-based news.
- Firearms and weapons: Any content related to weapons, ammunition, firearms, gun ranges, paintball guns, guns, air guns, explosives, bombs, knives or weapons of any kind and/or fireworks.
- Hate speech: Any content which insults, discriminates, defames or threatens an individual or groups of individuals based upon, including but not limited to, that individual’s race, ethnicity, national origin, caste, gender, gender identity, sex, religious affiliation, age, serious disease and/or disability.
- Illegal activity or legally questionable activity: Any content which promotes, refers to and/or sells illegal products and services, products or services of questionable legality, violates the privacy rights and any other rights of others and/or that facilitates illegal activity.
- Intellectual property infringement: Any content which infringes any third-party intellectual property rights (including but not limited to, the misappropriation of a trademark or logo, distribution of copyrighted material without the express authorisation of the owner and/or sale or promotion of counterfeit goods).
- Misleading content: Any content based on fraudulent or deceptive claims. All claims must be substantiated, clear, and accurate.
- Questionable business opportunities: Any content which may be or amounts to a ponzi schemes, pyramid schemes, get-rich-quick schemes, free money offers or other similar money-making opportunities.
- Religious content: Any content regarding religion or philosophical belief, any ritual of a specific religion, religious agendas and/or events. Content cannot advocate for or promote one religion over another.
- Sexual, obscene, or pornographic material: Any content which contains adult, mature, and/or sexually-explicit products and services, gentlemen’s clubs, escort services, erotic bookstores, nudity, graphic language, and excessive profanity. Any image, graphic or content that is sexual or pornographic in nature, obscene, includes nudity, sexually suggestive text, images or situations or otherwise uses inappropriate or provocative language.
- Unsecure content: Any content which contains adware, spyware, P2P application, malware, spyware, viruses, worms, Trojan horses or other harmful computer code that interferes with or disrupts the integrity or performance of the LoopMe platform and services.
- Violence & graphic content: Any content which, in LoopMe’s sole discretion, is violent, graphic, objectionable, disrespectful, vulgar or offensive, including images and language.
- Alcohol: LoopMe allows content related to alcohol, provided that such content does not:
- target individuals below the legal drinking age in the respective jurisdiction where such content is displayed;
- imply that drinking alcohol can improve social, sexual, professional, intellectual or athletic standing;
- imply that alcohol provides health and therapeutic benefits;
- portray excessive drinking favourably or featuring binge or competition drinking;
- show alcohol consumption in conjunction with the operation of a vehicle of any kind, the operation of machinery, or the performance of any task requiring alertness or dexterity; and/or
- conflict with any applicable federal, state and local laws and regulatory guidelines relating to alcohol in the jurisdiction which the content is displayed.
- Children and minors: Any content that specifically targets minor need to comply with all applicable laws and requires prior express approval by LoopMe.
- Cryptocurrency: Any content which promotes Cryptocurrency must comply with all applicable laws and requires prior express approval by LoopMe.
- Dating and personals: Content must not promote one-night stands, hook-ups, and sexual encounters, infidelity and/or casual sex.
- Financial services: Content must comply with any and all guidance provided by financial governing bodies in the jurisdiction in which the content is displayed.
- Gambling: Content pertaining to Gambling is prohibited, however Content relating to State run lotteries is acceptable provided that they comply with applicable laws and regulations in relevant jurisdictions.
- Media and negative earned media: Direct competitors cannot promote negative earned media content that defames or otherwise compromises an industry competitor without clear disclosure.
- Medications and healthcare products: Content relating to Medications and Healthcare products are allowed except for content relating to:
- recreational drugs;
- erectile or sexual enhancers;
- paternity tests;
- controlled substances such as steroids;
- anabolic or hormones;
- any product that claims to have a similar effect to illegal substances, and weight loss drugs that make unrealistic claims;
- prescription drugs-based content (unless expressly approved by LoopMe); and/or
- online pharmacies selling medicines either with or without prescription and informative websites related to medicines (except if they are certified as per local applicable regulation and expressly approved by LoopMe).
- Political: Political content is content regarding political organisations, candidates, political initiatives and/or events. LoopMe supports responsible political advertising and requires all political content to comply with the local legal requirements, including campaign and election laws and mandated ‘election silence periods’ for any geographic areas that they target. All political content and ads must have clear disclosure (i.e., Promoted by [political party]). Political content must not:
- portray false, untrue or misleading political content (LoopMe reserves the right to require substantiation of any factual claims);
- exclude certain political parties without a legal basis for exclusion;
- contain inflammatory political content;
- portray voting or census participation as useless and/or meaningless and advise users not to vote or participate in a census; and/or
- be paid for directly or indirectly by a non-resident foreign national or entity.
- Surveys: If using LoopMe’s technology for the purposes of conducting a survey, you are prohibited from collecting the following information:
- name, email address, address;
- financial status or account information;
- racial or ethnic information;
- health or medical history or information;
- sexual behaviour or orientation;
- information about children under the age of 13;
- political opinions or beliefs;
- trade union membership; and/or
- religious or philosophical beliefs.
- Tobacco and drugs:
- Any content which promotes smoking paraphernalia, e-cigarettes, vaping, tobacco, cigars, tobacco pipes, rolling papers, smokeless tobacco must be expressly approved in writing by LoopMe; and/or
- Cannabis and CBD related content must comply with the individual State and/or Country restrictions relating to cannabis and CBD.
- Windows Dialog or Alert Style: Any creative that a user might mistake for an OS or application-level notification rather than an advertisement, this includes, but is not limited to, deceptive ads that resemble user interface elements (e.g., text boxes) and creatives that mimic buttons or icons that claim a functionality that is not there (e.g., play, chat, wink, friends, search buttons);
- Expandable (Automatic): Ads that automatically expand without the user’s engagement or action (e.g., click, touch);
- Auto-redirect: Ads that automatically redirect the user without the user’s engagement or action (e.g., click, touch);
- Downloads: Ads that do not ask the user for permission before initiating any downloads before initiating and downloads/installations/services/fees. This includes Click-to-Call and Click-to-Subscribe ads that do not include an intermediary landing page or other prompt that clearly explains the terms and/or fees associated with the call or subscription; and/or
- Operation of network: Ads which interfere with the operation of LoopMe’s network. For example, use that interferes with the normal operation of an end user’s device, or otherwise creates a safety or security risk to the LoopMe platform, our customers, or our end users, is prohibited.
- LoopMe’s Process
- Human Verification
- Mobile Web
- URL working;
- Site category;
- Last update;
- Advertising visible on the page;
- Videos on website with sound on automatically;
- Videos running at the same time;
- Local market Alexa ranking;
- Social media channels;
- Incentivised ads;
- Social media channels; and/or
- Site content.
- URL not working;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- Page content not updated in the last 7 days;
- Videos on website running with sound on;
- Multiple videos running at the same time; and/or
- Not in local market Alexa top 50,000.
- Applications
- Whether the app is available on AppStore or GooglePlay;
- Site category;
- Last update;
- Advertising visible on the applications;
- AppAnnie ranking; and/or
- Incentivised ads.
- App not available on AppStore or GooglePlay;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- App not updated during the last 60 days;
- Advertising not visible on the applications; and/or
- Not ranked on AppAnnie.
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Domain Block Lists
- Allowed List
- Technological Approach
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Third Party Verification
- Takedown Policy
Effective January 19, 2022 to January 19, 2022
DownloadTable of Contents
- Fake News: Content that seeks to intentionally deceive the reader into believing something that is not true or that they are reading legitimate editorial content or fact-based news.
- Firearms and weapons: Any content related to weapons, ammunition, firearms, gun ranges, paintball guns, guns, air guns, explosives, bombs, knives or weapons of any kind and/or fireworks.
- Hate speech: Any content which insults, discriminates, defames or threatens an individual or groups of individuals based upon, including but not limited to, that individual’s race, ethnicity, national origin, caste, gender, gender identity, sex, religious affiliation, age, serious disease and/or disability.
- Illegal activity or legally questionable activity: Any content which promotes, refers to and/or sells illegal products and services, products or services of questionable legality, violates the privacy rights and any other rights of others and/or that facilitates illegal activity.
- Intellectual property infringement: Any content which infringes any third-party intellectual property rights (including but not limited to, the misappropriation of a trademark or logo, distribution of copyrighted material without the express authorisation of the owner and/or sale or promotion of counterfeit goods).
- Misleading content: Any content based on fraudulent or deceptive claims. All claims must be substantiated, clear, and accurate.
- Questionable business opportunities: Any content which may be or amounts to a ponzi schemes, pyramid schemes, get-rich-quick schemes, free money offers or other similar money-making opportunities.
- Religious content: Any content regarding religion or philosophical belief, any ritual of a specific religion, religious agendas and/or events. Content cannot advocate for or promote one religion over another.
- Sexual, obscene, or pornographic material: Any content which contains adult, mature, and/or sexually-explicit products and services, gentlemen’s clubs, escort services, erotic bookstores, nudity, graphic language, and excessive profanity. Any image, graphic or content that is sexual or pornographic in nature, obscene, includes nudity, sexually suggestive text, images or situations or otherwise uses inappropriate or provocative language.
- Unsecure content: Any content which contains adware, spyware, P2P application, malware, spyware, viruses, worms, Trojan horses or other harmful computer code that interferes with or disrupts the integrity or performance of the LoopMe platform and services.
- Violence & graphic content: Any content which, in LoopMe’s sole discretion, is violent, graphic, objectionable, disrespectful, vulgar or offensive, including images and language.
- Alcohol: LoopMe allows content related to alcohol, provided that such content does not:
- target individuals below the legal drinking age in the respective jurisdiction where such content is displayed;
- imply that drinking alcohol can improve social, sexual, professional, intellectual or athletic standing;
- imply that alcohol provides health and therapeutic benefits;
- portray excessive drinking favourably or featuring binge or competition drinking;
- show alcohol consumption in conjunction with the operation of a vehicle of any kind, the operation of machinery, or the performance of any task requiring alertness or dexterity; and/or
- conflict with any applicable federal, state and local laws and regulatory guidelines relating to alcohol in the jurisdiction which the content is displayed.
- Children and minors: Any content that specifically targets minor need to comply with all applicable laws and requires prior express approval by LoopMe.
- Cryptocurrency: Any content which promotes Cryptocurrency must comply with all applicable laws and requires prior express approval by LoopMe.
- Dating and personals: Content must not promote one-night stands, hook-ups, and sexual encounters, infidelity and/or casual sex.
- Financial services: Content must comply with any and all guidance provided by financial governing bodies in the jurisdiction in which the content is displayed.
- Gambling: Content pertaining to Gambling is prohibited, however Content relating to State run lotteries is acceptable provided that they comply with applicable laws and regulations in relevant jurisdictions.
- Media and negative earned media: Direct competitors cannot promote negative earned media content that defames or otherwise compromises an industry competitor without clear disclosure.
- Medications and healthcare products: Content relating to Medications and Healthcare products are allowed except for content relating to:
- recreational drugs;
- erectile or sexual enhancers;
- paternity tests;
- controlled substances such as steroids;
- anabolic or hormones;
- any product that claims to have a similar effect to illegal substances, and weight loss drugs that make unrealistic claims;
- prescription drugs-based content (unless expressly approved by LoopMe); and/or
- online pharmacies selling medicines either with or without prescription and informative websites related to medicines (except if they are certified as per local applicable regulation and expressly approved by LoopMe).
- Political: Political content is content regarding political organisations, candidates, political initiatives and/or events. LoopMe supports responsible political advertising and requires all political content to comply with the local legal requirements, including campaign and election laws and mandated ‘election silence periods’ for any geographic areas that they target. All political content and ads must have clear disclosure (i.e., Promoted by [political party]). Political content must not:
- portray false, untrue or misleading political content (LoopMe reserves the right to require substantiation of any factual claims);
- exclude certain political parties without a legal basis for exclusion;
- contain inflammatory political content;
- portray voting or census participation as useless and/or meaningless and advise users not to vote or participate in a census; and/or
- be paid for directly or indirectly by a non-resident foreign national or entity.
- Surveys: If using LoopMe’s technology for the purposes of conducting a survey, you are prohibited from collecting the following information:
- name, email address, address;
- financial status or account information;
- racial or ethnic information;
- health or medical history or information;
- sexual behaviour or orientation;
- information about children under the age of 13;
- political opinions or beliefs;
- trade union membership; and/or
- religious or philosophical beliefs.
- Tobacco and drugs:
- Any content which promotes smoking paraphernalia, e-cigarettes, vaping, tobacco, cigars, tobacco pipes, rolling papers, smokeless tobacco must be expressly approved in writing by LoopMe; and/or
- Cannabis and CBD related content must comply with the individual State and/or Country restrictions relating to cannabis and CBD.
- Windows Dialog or Alert Style: Any creative that a user might mistake for an OS or application-level notification rather than an advertisement, this includes, but is not limited to, deceptive ads that resemble user interface elements (e.g., text boxes) and creatives that mimic buttons or icons that claim a functionality that is not there (e.g., play, chat, wink, friends, search buttons);
- Expandable (Automatic): Ads that automatically expand without the user’s engagement or action (e.g., click, touch);
- Auto-redirect: Ads that automatically redirect the user without the user’s engagement or action (e.g., click, touch);
- Downloads: Ads that do not ask the user for permission before initiating any downloads before initiating and downloads/installations/services/fees. This includes Click-to-Call and Click-to-Subscribe ads that do not include an intermediary landing page or other prompt that clearly explains the terms and/or fees associated with the call or subscription; and/or
- Operation of network: Ads which interfere with the operation of LoopMe’s network. For example, use that interferes with the normal operation of an end user’s device, or otherwise creates a safety or security risk to the LoopMe platform, our customers, or our end users, is prohibited.
- LoopMe’s Process
- Human Verification
- Mobile Web
- URL working;
- Site category;
- Last update;
- Advertising visible on the page;
- Videos on website with sound on automatically;
- Videos running at the same time;
- Local market Alexa ranking;
- Social media channels;
- Incentivised ads;
- Social media channels; and/or
- Site content.
- URL not working;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- Page content not updated in the last 7 days;
- Videos on website running with sound on;
- Multiple videos running at the same time; and/or
- Not in local market Alexa top 50,000.
- Applications
- Whether the app is available on AppStore or GooglePlay;
- Site category;
- Last update;
- Advertising visible on the applications;
- AppAnnie ranking; and/or
- Incentivised ads.
- App not available on AppStore or GooglePlay;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- App not updated during the last 60 days;
- Advertising not visible on the applications; and/or
- Not ranked on AppAnnie.
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Domain Block Lists
- Allowed List
- Technological Approach
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Third Party Verification
- Takedown Policy
Effective January 19, 2022 to January 19, 2022
DownloadTable of Contents
- Fake News: Content that seeks to intentionally deceive the reader into believing something that is not true or that they are reading legitimate editorial content or fact-based news.
- Firearms and weapons: Any content related to weapons, ammunition, firearms, gun ranges, paintball guns, guns, air guns, explosives, bombs, knives or weapons of any kind and/or fireworks.
- Hate speech: Any content which insults, discriminates, defames or threatens an individual or groups of individuals based upon, including but not limited to, that individual’s race, ethnicity, national origin, caste, gender, gender identity, sex, religious affiliation, age, serious disease and/or disability.
- Illegal activity or legally questionable activity: Any content which promotes, refers to and/or sells illegal products and services, products or services of questionable legality, violates the privacy rights and any other rights of others and/or that facilitates illegal activity.
- Intellectual property infringement: Any content which infringes any third-party intellectual property rights (including but not limited to, the misappropriation of a trademark or logo, distribution of copyrighted material without the express authorisation of the owner and/or sale or promotion of counterfeit goods).
- Misleading content: Any content based on fraudulent or deceptive claims. All claims must be substantiated, clear, and accurate.
- Questionable business opportunities: Any content which may be or amounts to a ponzi schemes, pyramid schemes, get-rich-quick schemes, free money offers or other similar money-making opportunities.
- Religious content: Any content regarding religion or philosophical belief, any ritual of a specific religion, religious agendas and/or events. Content cannot advocate for or promote one religion over another.
- Sexual, obscene, or pornographic material: Any content which contains adult, mature, and/or sexually-explicit products and services, gentlemen’s clubs, escort services, erotic bookstores, nudity, graphic language, and excessive profanity. Any image, graphic or content that is sexual or pornographic in nature, obscene, includes nudity, sexually suggestive text, images or situations or otherwise uses inappropriate or provocative language.
- Unsecure content: Any content which contains adware, spyware, P2P application, malware, spyware, viruses, worms, Trojan horses or other harmful computer code that interferes with or disrupts the integrity or performance of the LoopMe platform and services.
- Violence & graphic content: Any content which, in LoopMe’s sole discretion, is violent, graphic, objectionable, disrespectful, vulgar or offensive, including images and language.
- Alcohol: LoopMe allows content related to alcohol, provided that such content does not:
- target individuals below the legal drinking age in the respective jurisdiction where such content is displayed;
- imply that drinking alcohol can improve social, sexual, professional, intellectual or athletic standing;
- imply that alcohol provides health and therapeutic benefits;
- portray excessive drinking favourably or featuring binge or competition drinking;
- show alcohol consumption in conjunction with the operation of a vehicle of any kind, the operation of machinery, or the performance of any task requiring alertness or dexterity; and/or
- conflict with any applicable federal, state and local laws and regulatory guidelines relating to alcohol in the jurisdiction which the content is displayed.
- Children and minors: Any content that specifically targets minor need to comply with all applicable laws and requires prior express approval by LoopMe.
- Cryptocurrency: Any content which promotes Cryptocurrency must comply with all applicable laws and requires prior express approval by LoopMe.
- Dating and personals: Content must not promote one-night stands, hook-ups, and sexual encounters, infidelity and/or casual sex.
- Financial services: Content must comply with any and all guidance provided by financial governing bodies in the jurisdiction in which the content is displayed.
- Gambling: Content pertaining to Gambling is prohibited, however Content relating to State run lotteries is acceptable provided that they comply with applicable laws and regulations in relevant jurisdictions.
- Media and negative earned media: Direct competitors cannot promote negative earned media content that defames or otherwise compromises an industry competitor without clear disclosure.
- Medications and healthcare products: Content relating to Medications and Healthcare products are allowed except for content relating to:
- recreational drugs;
- erectile or sexual enhancers;
- paternity tests;
- controlled substances such as steroids;
- anabolic or hormones;
- any product that claims to have a similar effect to illegal substances, and weight loss drugs that make unrealistic claims;
- prescription drugs-based content (unless expressly approved by LoopMe); and/or
- online pharmacies selling medicines either with or without prescription and informative websites related to medicines (except if they are certified as per local applicable regulation and expressly approved by LoopMe).
- Political: Political content is content regarding political organisations, candidates, political initiatives and/or events. LoopMe supports responsible political advertising and requires all political content to comply with the local legal requirements, including campaign and election laws and mandated ‘election silence periods’ for any geographic areas that they target. All political content and ads must have clear disclosure (i.e., Promoted by [political party]). Political content must not:
- portray false, untrue or misleading political content (LoopMe reserves the right to require substantiation of any factual claims);
- exclude certain political parties without a legal basis for exclusion;
- contain inflammatory political content;
- portray voting or census participation as useless and/or meaningless and advise users not to vote or participate in a census; and/or
- be paid for directly or indirectly by a non-resident foreign national or entity.
- Surveys: If using LoopMe’s technology for the purposes of conducting a survey, you are prohibited from collecting the following information:
- name, email address, address;
- financial status or account information;
- racial or ethnic information;
- health or medical history or information;
- sexual behaviour or orientation;
- information about children under the age of 13;
- political opinions or beliefs;
- trade union membership; and/or
- religious or philosophical beliefs.
- Tobacco and drugs:
- Any content which promotes smoking paraphernalia, e-cigarettes, vaping, tobacco, cigars, tobacco pipes, rolling papers, smokeless tobacco must be expressly approved in writing by LoopMe; and/or
- Cannabis and CBD related content must comply with the individual State and/or Country restrictions relating to cannabis and CBD.
- Windows Dialog or Alert Style: Any creative that a user might mistake for an OS or application-level notification rather than an advertisement, this includes, but is not limited to, deceptive ads that resemble user interface elements (e.g., text boxes) and creatives that mimic buttons or icons that claim a functionality that is not there (e.g., play, chat, wink, friends, search buttons);
- Expandable (Automatic): Ads that automatically expand without the user’s engagement or action (e.g., click, touch);
- Auto-redirect: Ads that automatically redirect the user without the user’s engagement or action (e.g., click, touch);
- Downloads: Ads that do not ask the user for permission before initiating any downloads before initiating and downloads/installations/services/fees. This includes Click-to-Call and Click-to-Subscribe ads that do not include an intermediary landing page or other prompt that clearly explains the terms and/or fees associated with the call or subscription; and/or
- Operation of network: Ads which interfere with the operation of LoopMe’s network. For example, use that interferes with the normal operation of an end user’s device, or otherwise creates a safety or security risk to the LoopMe platform, our customers, or our end users, is prohibited.
- LoopMe’s Process
- Human Verification
- Mobile Web
- URL working;
- Site category;
- Last update;
- Advertising visible on the page;
- Videos on website with sound on automatically;
- Videos running at the same time;
- Local market Alexa ranking;
- Social media channels;
- Incentivised ads;
- Social media channels; and/or
- Site content.
- URL not working;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- Page content not updated in the last 7 days;
- Videos on website running with sound on;
- Multiple videos running at the same time; and/or
- Not in local market Alexa top 50,000.
- Applications
- Whether the app is available on AppStore or GooglePlay;
- Site category;
- Last update;
- Advertising visible on the applications;
- AppAnnie ranking; and/or
- Incentivised ads.
- App not available on AppStore or GooglePlay;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- App not updated during the last 60 days;
- Advertising not visible on the applications; and/or
- Not ranked on AppAnnie.
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Domain Block Lists
- Allowed List
- Technological Approach
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Third Party Verification
- Takedown Policy
Effective January 19, 2022 to January 19, 2022
DownloadTable of Contents
- Fake News: Content that seeks to intentionally deceive the reader into believing something that is not true or that they are reading legitimate editorial content or fact-based news.
- Firearms and weapons: Any content related to weapons, ammunition, firearms, gun ranges, paintball guns, guns, air guns, explosives, bombs, knives or weapons of any kind and/or fireworks.
- Hate speech: Any content which insults, discriminates, defames or threatens an individual or groups of individuals based upon, including but not limited to, that individual’s race, ethnicity, national origin, caste, gender, gender identity, sex, religious affiliation, age, serious disease and/or disability.
- Illegal activity or legally questionable activity: Any content which promotes, refers to and/or sells illegal products and services, products or services of questionable legality, violates the privacy rights and any other rights of others and/or that facilitates illegal activity.
- Intellectual property infringement: Any content which infringes any third-party intellectual property rights (including but not limited to, the misappropriation of a trademark or logo, distribution of copyrighted material without the express authorisation of the owner and/or sale or promotion of counterfeit goods).
- Misleading content: Any content based on fraudulent or deceptive claims. All claims must be substantiated, clear, and accurate.
- Questionable business opportunities: Any content which may be or amounts to a ponzi schemes, pyramid schemes, get-rich-quick schemes, free money offers or other similar money-making opportunities.
- Religious content: Any content regarding religion or philosophical belief, any ritual of a specific religion, religious agendas and/or events. Content cannot advocate for or promote one religion over another.
- Sexual, obscene, or pornographic material: Any content which contains adult, mature, and/or sexually-explicit products and services, gentlemen’s clubs, escort services, erotic bookstores, nudity, graphic language, and excessive profanity. Any image, graphic or content that is sexual or pornographic in nature, obscene, includes nudity, sexually suggestive text, images or situations or otherwise uses inappropriate or provocative language.
- Unsecure content: Any content which contains adware, spyware, P2P application, malware, spyware, viruses, worms, Trojan horses or other harmful computer code that interferes with or disrupts the integrity or performance of the LoopMe platform and services.
- Violence & graphic content: Any content which, in LoopMe’s sole discretion, is violent, graphic, objectionable, disrespectful, vulgar or offensive, including images and language.
- Alcohol: LoopMe allows content related to alcohol, provided that such content does not:
- target individuals below the legal drinking age in the respective jurisdiction where such content is displayed;
- imply that drinking alcohol can improve social, sexual, professional, intellectual or athletic standing;
- imply that alcohol provides health and therapeutic benefits;
- portray excessive drinking favourably or featuring binge or competition drinking;
- show alcohol consumption in conjunction with the operation of a vehicle of any kind, the operation of machinery, or the performance of any task requiring alertness or dexterity; and/or
- conflict with any applicable federal, state and local laws and regulatory guidelines relating to alcohol in the jurisdiction which the content is displayed.
- Children and minors: Any content that specifically targets minor need to comply with all applicable laws and requires prior express approval by LoopMe.
- Cryptocurrency: Any content which promotes Cryptocurrency must comply with all applicable laws and requires prior express approval by LoopMe.
- Dating and personals: Content must not promote one-night stands, hook-ups, and sexual encounters, infidelity and/or casual sex.
- Financial services: Content must comply with any and all guidance provided by financial governing bodies in the jurisdiction in which the content is displayed.
- Gambling: Content pertaining to Gambling is prohibited, however Content relating to State run lotteries is acceptable provided that they comply with applicable laws and regulations in relevant jurisdictions.
- Media and negative earned media: Direct competitors cannot promote negative earned media content that defames or otherwise compromises an industry competitor without clear disclosure.
- Medications and healthcare products: Content relating to Medications and Healthcare products are allowed except for content relating to:
- recreational drugs;
- erectile or sexual enhancers;
- paternity tests;
- controlled substances such as steroids;
- anabolic or hormones;
- any product that claims to have a similar effect to illegal substances, and weight loss drugs that make unrealistic claims;
- prescription drugs-based content (unless expressly approved by LoopMe); and/or
- online pharmacies selling medicines either with or without prescription and informative websites related to medicines (except if they are certified as per local applicable regulation and expressly approved by LoopMe).
- Political: Political content is content regarding political organisations, candidates, political initiatives and/or events. LoopMe supports responsible political advertising and requires all political content to comply with the local legal requirements, including campaign and election laws and mandated ‘election silence periods’ for any geographic areas that they target. All political content and ads must have clear disclosure (i.e., Promoted by [political party]). Political content must not:
- portray false, untrue or misleading political content (LoopMe reserves the right to require substantiation of any factual claims);
- exclude certain political parties without a legal basis for exclusion;
- contain inflammatory political content;
- portray voting or census participation as useless and/or meaningless and advise users not to vote or participate in a census; and/or
- be paid for directly or indirectly by a non-resident foreign national or entity.
- Surveys: If using LoopMe’s technology for the purposes of conducting a survey, you are prohibited from collecting the following information:
- name, email address, address;
- financial status or account information;
- racial or ethnic information;
- health or medical history or information;
- sexual behaviour or orientation;
- information about children under the age of 13;
- political opinions or beliefs;
- trade union membership; and/or
- religious or philosophical beliefs.
- Tobacco and drugs:
- Any content which promotes smoking paraphernalia, e-cigarettes, vaping, tobacco, cigars, tobacco pipes, rolling papers, smokeless tobacco must be expressly approved in writing by LoopMe; and/or
- Cannabis and CBD related content must comply with the individual State and/or Country restrictions relating to cannabis and CBD.
- Windows Dialog or Alert Style: Any creative that a user might mistake for an OS or application-level notification rather than an advertisement, this includes, but is not limited to, deceptive ads that resemble user interface elements (e.g., text boxes) and creatives that mimic buttons or icons that claim a functionality that is not there (e.g., play, chat, wink, friends, search buttons);
- Expandable (Automatic): Ads that automatically expand without the user’s engagement or action (e.g., click, touch);
- Auto-redirect: Ads that automatically redirect the user without the user’s engagement or action (e.g., click, touch);
- Downloads: Ads that do not ask the user for permission before initiating any downloads before initiating and downloads/installations/services/fees. This includes Click-to-Call and Click-to-Subscribe ads that do not include an intermediary landing page or other prompt that clearly explains the terms and/or fees associated with the call or subscription; and/or
- Operation of network: Ads which interfere with the operation of LoopMe’s network. For example, use that interferes with the normal operation of an end user’s device, or otherwise creates a safety or security risk to the LoopMe platform, our customers, or our end users, is prohibited.
- LoopMe’s Process
- Human Verification
- Mobile Web
- URL working;
- Site category;
- Last update;
- Advertising visible on the page;
- Videos on website with sound on automatically;
- Videos running at the same time;
- Local market Alexa ranking;
- Social media channels;
- Incentivised ads;
- Social media channels; and/or
- Site content.
- URL not working;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- Page content not updated in the last 7 days;
- Videos on website running with sound on;
- Multiple videos running at the same time; and/or
- Not in local market Alexa top 50,000.
- Applications
- Whether the app is available on AppStore or GooglePlay;
- Site category;
- Last update;
- Advertising visible on the applications;
- AppAnnie ranking; and/or
- Incentivised ads.
- App not available on AppStore or GooglePlay;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- App not updated during the last 60 days;
- Advertising not visible on the applications; and/or
- Not ranked on AppAnnie.
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Domain Block Lists
- Allowed List
- Technological Approach
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Third Party Verification
- Takedown Policy
Effective January 18, 2022 to January 19, 2022
DownloadTable of Contents
- Cryptocurrency: Cryptocurrency is not allowed.
- Fake News: Content that seeks to intentionally deceive the reader into believing something that is not true or that they are reading legitimate editorial content or fact-based news.
- Firearms and weapons: Any content related to weapons, ammunition, firearms, gun ranges, paintball guns, guns, air guns, explosives, bombs, knives or weapons of any kind and/or fireworks.
- Hate speech: Any content which insults, discriminates, defames or threatens an individual or groups of individuals based upon, including but not limited to, that individual’s race, ethnicity, national origin, caste, gender, gender identity, sex, religious affiliation, age, serious disease and/or disability.
- Illegal activity or legally questionable activity: Any content which promotes, refers to and/or sells illegal products and services, products or services of questionable legality, violates the privacy rights and any other rights of others and/or that facilitates illegal activity.
- Intellectual property infringement: Any content which infringes any third-party intellectual property rights (including but not limited to, the misappropriation of a trademark or logo, distribution of copyrighted material without the express authorisation of the owner and/or sale or promotion of counterfeit goods).
- Misleading content: Any content based on fraudulent or deceptive claims. All claims must be substantiated, clear, and accurate.
- Questionable business opportunities: Any content which may be or amounts to a ponzi schemes, pyramid schemes, get-rich-quick schemes, free money offers or other similar money-making opportunities.
- Religious content: Any content regarding religion or philosophical belief, any ritual of a specific religion, religious agendas and/or events. Content cannot advocate for or promote one religion over another.
- Sexual, obscene, or pornographic material: Any content which contains adult, mature, and/or sexually-explicit products and services, gentlemen’s clubs, escort services, erotic bookstores, nudity, graphic language, and excessive profanity. Any image, graphic or content that is sexual or pornographic in nature, obscene, includes nudity, sexually suggestive text, images or situations or otherwise uses inappropriate or provocative language.
- Unsecure content: Any content which contains adware, spyware, P2P application, malware, spyware, viruses, worms, Trojan horses or other harmful computer code that interferes with or disrupts the integrity or performance of the LoopMe platform and services.
- Violence & graphic content: Any content which, in LoopMe’s sole discretion, is violent, graphic, objectionable, disrespectful, vulgar or offensive, including images and language.
- Alcohol: LoopMe allows content related to alcohol, provided that such content does not:
- target individuals below the legal drinking age in the respective jurisdiction where such content is displayed;
- imply that drinking alcohol can improve social, sexual, professional, intellectual or athletic standing;
- imply that alcohol provides health and therapeutic benefits;
- portray excessive drinking favourably or featuring binge or competition drinking;
- show alcohol consumption in conjunction with the operation of a vehicle of any kind, the operation of machinery, or the performance of any task requiring alertness or dexterity; and/or
- conflict with any applicable federal, state and local laws and regulatory guidelines relating to alcohol in the jurisdiction which the content is displayed.
- Children and minors: Any content that specifically targets minor need to comply with all applicable laws and require prior express approval by LoopMe.
- Dating and personals: Content must not promote one-night stands, hook-ups, and sexual encounters, infidelity and/or casual sex.
- Financial services: Content must comply with any and all guidance provided by financial governing bodies in the jurisdiction in which the content is displayed.
- Gambling: Content pertaining to Gambling is prohibited, however Content relating to State run lotteries is acceptable provided that they comply with applicable laws and regulations in relevant jurisdictions.
- Media and negative earned media: Direct competitors cannot promote negative earned media content that defames or otherwise compromises an industry competitor without clear disclosure.
- Medications and healthcare products: Content relating to Medications and Healthcare products are allowed except for content relating to:
- recreational drugs;
- erectile or sexual enhancers;
- paternity tests;
- controlled substances such as steroids;
- anabolic or hormones;
- any product that claims to have a similar effect to illegal substances, and weight loss drugs that make unrealistic claims;
- prescription drugs-based content (unless expressly approved by LoopMe); and/or
- online pharmacies selling medicines either with or without prescription and informative websites related to medicines (except if they are certified as per local applicable regulation and expressly approved by LoopMe).
- Political: Political content is content regarding political organisations, candidates, political initiatives and/or events. LoopMe supports responsible political advertising and requires all political content to comply with the local legal requirements, including campaign and election laws and mandated ‘election silence periods’ for any geographic areas that they target. All political content and ads must have clear disclosure (i.e., Promoted by [political party]). Political content must not:
- portray false, untrue or misleading political content (LoopMe reserves the right to require substantiation of any factual claims);
- exclude certain political parties without a legal basis for exclusion;
- contain inflammatory political content;
- portray voting or census participation as useless and/or meaningless and advise users not to vote or participate in a census; and/or
- be paid for directly or indirectly by a non-resident foreign national or entity.
- Surveys: If using LoopMe’s technology for the purposes of conducting a survey, you are prohibited from collecting the following information:
- name, email address, address;
- financial status or account information;
- racial or ethnic information;
- health or medical history or information;
- sexual behaviour or orientation;
- information about children under the age of 13;
- political opinions or beliefs;
- trade union membership; and/or
- religious or philosophical beliefs.
- Tobacco and drugs:
- Any content which promotes smoking paraphernalia, e-cigarettes, vaping, tobacco, cigars, tobacco pipes, rolling papers, smokeless tobacco must be expressly approved in writing by LoopMe; and/or
- Cannabis and CBD related content must comply with the individual State and/or Country restrictions relating to cannabis and CBD.
- Windows Dialog or Alert Style: Any creative that a user might mistake for an OS or application-level notification rather than an advertisement, this includes, but is not limited to, deceptive ads that resemble user interface elements (e.g., text boxes) and creatives that mimic buttons or icons that claim a functionality that is not there (e.g., play, chat, wink, friends, search buttons);
- Expandable (Automatic): Ads that automatically expand without the user’s engagement or action (e.g., click, touch);
- Auto-redirect: Ads that automatically redirect the user without the user’s engagement or action (e.g., click, touch);
- Downloads: Ads that do not ask the user for permission before initiating any downloads before initiating and downloads/installations/services/fees. This includes Click-to-Call and Click-to-Subscribe ads that do not include an intermediary landing page or other prompt that clearly explains the terms and/or fees associated with the call or subscription; and/or
- Operation of network: Ads which interfere with the operation of LoopMe’s network. For example, use that interferes with the normal operation of an end user’s device, or otherwise creates a safety or security risk to the LoopMe platform, our customers, or our end users, is prohibited.
- LoopMe’s Process
- Human Verification
- Mobile Web
- URL working;
- Site category;
- Last update;
- Advertising visible on the page;
- Videos on website with sound on automatically;
- Videos running at the same time;
- Local market Alexa ranking;
- Social media channels;
- Incentivised ads;
- Social media channels; and/or
- Site content.
- URL not working;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- Page content not updated in the last 7 days;
- Videos on website running with sound on;
- Multiple videos running at the same time; and/or
- Not in local market Alexa top 50,000.
- Applications
- Whether the app is available on AppStore or GooglePlay;
- Site category;
- Last update;
- Advertising visible on the applications;
- AppAnnie ranking; and/or
- Incentivised ads.
- App not available on AppStore or GooglePlay;
- Belongs to a Prohibited Category (as set out in our Content Guidelines);
- App not updated during the last 60 days;
- Advertising not visible on the applications; and/or
- Not ranked on AppAnnie.
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Domain Block Lists
- Allowed List
- Technological Approach
- Unexpectedly high traffic;
- High CTR but low impressions;
- Low post-click events;
- Unexpectedly high CTR or VCR;
- Multiple views from the same user or Device ID;
- Multiple views from the same location; and/or
- Multiple views from randomised locations.
- Third Party Verification
- Takedown Policy
Effective September 9, 2020 to January 18, 2022
DownloadTable of Contents
- Cryptocurrency: Cryptocurrency is not allowed.
- Fake News: Content that seeks to intentionally deceive the reader into believing something that is not true or that they are reading legitimate editorial content or fact-based news.
- Firearms and weapons: Any content related to weapons, ammunition, firearms, gun ranges, paintball guns, guns, air guns, explosives, bombs, knives or weapons of any kind and/or fireworks.
- Hate speech: Any content which insults, discriminates, defames or threatens an individual or groups of individuals based upon, including but not limited to, that individual’s race, ethnicity, national origin, caste, gender, gender identity, sex, religious affiliation, age, serious disease and/or disability.
- Illegal activity or legally questionable activity: Any content which promotes, refers to and/or sells illegal products and services, products or services of questionable legality, violates the privacy rights and any other rights of others and/or that facilitates illegal activity.
- Intellectual property infringement: Any content which infringes any third-party intellectual property rights (including but not limited to, the misappropriation of a trademark or logo, distribution of copyrighted material without the express authorisation of the owner and/or sale or promotion of counterfeit goods).
- Misleading content: Any content based on fraudulent or deceptive claims. All claims must be substantiated, clear, and accurate.
- Questionable business opportunities: Any content which may be or amounts to a ponzi schemes, pyramid schemes, get-rich-quick schemes, free money offers or other similar money-making opportunities.
- Religious content: Any content regarding religion or philosophical belief, any ritual of a specific religion, religious agendas and/or events. Content cannot advocate for or promote one religion over another.
- Sexual, obscene, or pornographic material: Any content which contains adult, mature, and/or sexually-explicit products and services, gentlemen’s clubs, escort services, erotic bookstores, nudity, graphic language, and excessive profanity. Any image, graphic or content that is sexual or pornographic in nature, obscene, includes nudity, sexually suggestive text, images or situations or otherwise uses inappropriate or provocative language.
- Unsecure content: Any content which contains adware, spyware, P2P application, malware, spyware, viruses, worms, Trojan horses or other harmful computer code that interferes with or disrupts the integrity or performance of the LoopMe platform and services.
- Violence & graphic content: Any content which, in LoopMe’s sole discretion, is violent, graphic, objectionable, disrespectful, vulgar or offensive, including images and language.
- Alcohol: LoopMe allows content related to alcohol, provided that such content does not:
- target individuals below the legal drinking age in the respective jurisdiction where such content is displayed;
- imply that drinking alcohol can improve social, sexual, professional, intellectual or athletic standing;
- imply that alcohol provides health and therapeutic benefits;
- portray excessive drinking favourably or featuring binge or competition drinking;
- show alcohol consumption in conjunction with the operation of a vehicle of any kind, the operation of machinery, or the performance of any task requiring alertness or dexterity; and/or
- conflict with any applicable federal, state and local laws and regulatory guidelines relating to a