“Ad” means any advertisement provided by Agency on behalf of an Advertiser.
“Advertiser” means the advertiser for which Agency is the agent under an applicable IO.
“Advertising Materials” or “Campaign” means artwork, copy, or active URLs for Ads.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Agency” or “Advertising Agency” or “PinkLion” means the advertising agency listed on the applicable IO.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“CPV Deliverables” means Deliverables sold on a cost per thousand views basis.
“Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).
“IO” means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency or Advertiser.
“Media Company” means the publisher listed on the applicable IO.
“Media Company Properties” are websites specified on an IO that are owned, operated, or controlled by Media Company.
“Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means Media Company Properties and Network Properties.
“Terms” means these Standard Terms and Conditions.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
a) IO Details. From time to time, Media Company and Agency may execute IOs that will be accepted as set forth in Section 1(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, and (iv) the start and end dates of the campaign. 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.
b) Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within five (5) 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.
c) Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the
other party in writing.
a) Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section 5(c), will create a reasonably balanced delivery schedule. 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.
b) 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.
c) 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 prohibited category.
Media Company will use commercially reasonable efforts to comply with these Editorial Adjacencies.
a) 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. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 180 days of delivery of all Deliverables. Media Company should invoice Agency for the services provided on a calendar-month basis with the net cost (i.e., the cost after subtracting Agency commission, 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.
b) Payment Date. Agency will make payment after its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO.
c) Payment Liability. Media Company agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Advertiser to Agency for Ads placed in accordance with the IO. Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis. The Publisher is entitled to payment upon the collection of revenue from the advertiser, including an event where there was a claim for IVT and PinkLion succeeded in collecting the funds.
a) Confirmation of Campaign Initiation. Media Company will, within two (2) business days of the start date on the IO, provide confirmation to Agency, either electronically or in writing, stating whether the components of the IO have begun delivery.
b) Agency Reporting. All reported numbers for purposes of billing and general delivery reporting are based on counts within Agency or as provided in writing by Agency in the form of month-end statements.
a) Without Cause. Unless designated on the IO as non-cancellable, Agency may cancel the entire IO, or any portion thereof with 2 days’ prior written notice to Media Company
b) 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.
a) 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”).
b) 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 a condition.
c) 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
Each Party's Indemnity. Each party (Agency and Media Company) agrees to indemnify, defend, and hold harmless the other party, its affiliates, and their respective directors, officers, employees, and agents from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable attorneys; fees) arising out of or related to any breach of the terms of this Insertion Order (IO) by the indemnifying party, or any willful or willful act or omission of the indemnifying party.
Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section 7, damages that result from a breach of Section 9, 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.
a) 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 the 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.
b) 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.
c) 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.
d) Use of Collected Data.
i) Unless otherwise authorized by Agency, Media Company will not: (A) use or disclose IO Details of Agency, 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.
ii) 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.e) 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.
f) Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Websites 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.
g) Compliance with Law. Agency, Advertiser, and Media Company will always 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.
Media Company represents and warrants that:
i) Any and all information provided to Agency is correct, complete and current.
ii) Media Company is the owner of each Site, or it is legally authorized to act on behalf of the owner of such Site(s) for the purposes of the IO and MediaCompany has secured all necessary licenses, consents and authorizations for operation of the Services
iii) Media Company has all necessary right, power and authority to enter into the IO and to perform the acts required hereunder and the Media Company’s performance under the IO shall at all times comply with all applicable laws, rules and regulations, including without limitation, privacy laws, data protection laws and regulations, proprietary laws, intellectual property laws;
iv) It shall put in place and maintain on the Site(s) a clearly labelled and easily accessible privacy policy that provides users with clear and comprehensive information and which complies with all applicable laws and regulations regarding data protection and the privacy of the users’ personal information, and which clearly explains to users its policies and procedures regarding the collection, processing and use of personal data;b) Media Company further represents and warrants that the Site(s) and any material displayed therein:
i) Complies with all applicable laws, statutes, ordinances and regulations and do not contain or promote links to any website(s) or app(s) that contains defamatory, abusive, violent, sexually explicit, inappropriate or illegal content;
ii) Does not breach and has not breached any duty or rights of any third party or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories;
iii) Does not include content that is pornographic, illegal, racist, libelous, defamatory, contrary to public policy or otherwise inappropriate or unlawful or content that or contain viruses or similar programs that might harm data or computer systems, hate speech, “spam”, malicious code, adware, spyware or drive-by download applications, racism, mail fraud, pyramid schemes or investment opportunities or advice not
permitted by law;
iv) Do not and will not interact with end users’ browsers in any manner including without limitation by the installation or offering of any toolbars or toolbar applications, advertising texts, coupons, intext, ad injections, search enhancement and data exchange modules or price comparison applications;
v) Do not and will not engage in any fraudulent activity, including without limitation fictitious impression or views, automated and/or fraudulent impressions and/or views and/or clicks, malware; or violating any applicable law prohibiting “spam”. Agency makes no guarantee regarding the level of impressions of, actions or views on any ad, the timing of delivery of such impressions, actions and/or views and the revenue for the Publisher.
a) 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. Agency represents and warrants that Agency 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.
b) 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.
c) 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.
d) 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 the city of Tel Aviv, Israel. 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 in city of Tel Aviv, 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.
e) Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in 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.
f) 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.
g) Survival. Sections 3, 4, 7, 8, 9, 10 and 11 will survive termination or expiration of these Terms, and Section 4 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.
h) Headings. Section or paragraph headings used in these Terms are for reference purposes only and should not be used in the interpretation hereof.
