NEXTROLL, INC. ADDENDUM TO IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS (VERSION 3.0)
This Addendum (“Addendum”) is to the IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS (Version 3.0) (“Standard Terms”) found at http://www.iab.com/wp- content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf. The Standard Terms, as modified by this Addendum constitutes the parties’ agreement (“Agreement”) regarding the delivery of certain internet advertising services, and any IOs executed and delivered between the parties shall be governed by the Agreement. Capitalized terms used and defined in the Standard Terms shall have the same meaning when used in this Addendum. All references to “Terms” in the Standard Terms shall mean the Standard Terms as modified by this Addendum. In the event of any inconsistency between the Standard Terms and this Addendum, the terms of this Addendum shall prevail. The Standard Terms are hereby modified as follows:
- Advertiser (or Advertiser’s authorized Agency on its behalf) and NextRoll, Inc. and its Affiliates (“NextRoll”), as Media Company, agree to be bound by the Standard Terms, as amended by this Addendum. All references in the Standard Terms to Media Company shall mean NextRoll. Any terms and conditions proposed by Advertiser in acknowledging or accepting NextRoll’s provision of services which are different from or in addition to the terms set forth in this Addendum or an applicable IO, each of which shall be executed by both parties, shall not be binding upon NextRoll and shall be void and of no effect.
- Advertiser (or Advertiser’s authorized Agency on its behalf) acknowledges that NextRoll is not a media company and is a service provider that provides digital media services (“Services”) using NextRoll’s proprietary Platform, and therefore Sections II(b)-(d), IV(c), VI, VII and XIII of the Standard Terms are not applicable and are hereby deleted in their entirety. “Platform” means the NextRoll proprietary technology that allows NextRoll to provide the Services, including the NextRoll pixel (or other script or code), the NextRoll API, SDK or other mutually agreed upon means.
- If the party executing the IO is an Agency, (a) such Agency represents that it has the authority to act on behalf of the Advertiser with respect to all obligations and representations set forth in this Agreement, (ii) upon request, Agency will provide Media Company with written confirmation of the relationship between Agency and Advertiser, (iii) upon Media Company’s request, Agency will provide written confirmation that Advertiser has paid to Agency funds sufficient to make payment pursuant to this Agreement, (iv) Agency assumes responsibility for ensuring compliance with and breach of this Agreement by Advertiser and (v) except as otherwise set forth hereunder, Agency will ensure the performance of Advertiser’s obligations under this Agreement and will have joint and several liability in respect of Advertiser’s breach of this Agreement.
- The definitions shall be amended as follows:
- Section II(a) and Section IV(b) are deleted in their entirety and replaced with the following: “Compliance with IO. Media Company will comply with the campaign strategy set forth in IOs and any other directions provided in writing by Advertiser (or Advertiser’s authorized Agency on its behalf), including Ad targeting specifications, and will deliver to Advertiser (or Advertiser’s authorized Agency on its behalf) any agreed upon reports relating to the performance of the campaign.”
- Section XI is hereby amended and replaced in its entirety as follows:
“EXCEPT FOR EITHER PARTY’S WILLFUL MISCONDUCT AND ADVERTISER’S BREACH OF SECTION XII(g) BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS (WHETHER DIRECT OR INDIRECT) OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. UNDER NO CIRCUSTANCES WILL MEDIA COMPANY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY ADVERTISER (OR ADVERTIER’S AUTHORIZED AGENCY ON ITS BEHALF) TO MEDIA COMPANY UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). - Section XII is amended as follows:
(a) Clause XII(g) shall be deleted and replaced in its entirety as follows:
“(g) Compliance with Law. (a) Advertiser will comply with all applicable laws that relate to individual third-party privacy and publicity rights and will be solely responsible for the operation of all Advertiser Sites related to the Services. Advertiser will include clear and conspicuous notice consistent with applicable laws on Advertiser Sites that (i) discloses (and, where legally required, obtains consents) to its practices with regard to cookies targeting and online behavioral advertising, specifically addressing its data collection, use and disclosure practices (including that by visiting an Advertiser Site third parties, including Media Company, may place cookies on end user browsers for this purposes, the types of data that may be collected for targeted advertising, and that data collected may be used by third parties, including Media Company to target advertising on other Sites based on the end users’ online activity); and (ii) informs end users how they may opt-out from receiving targeted advertisements which may include links to the NAI website opt-out page at http://www.networkadvertising.org/choices/ or the DAA opt-out page at http://www.aboutads.info/ or, for end users located in European Territories, the EDAA opt-out page at http://youronlinechoices.eu/ . Advertiser will only send personally identifiable information or personal data to Media Company through the pixel or otherwise consistent with Media Company’s instructions or Documentation. (b) Advertiser acknowledges and agrees that in order for Media Company to comply with applicable laws in providing the Services, Advertiser may be required to host a notice and consent collection mechanism on its Advertiser Site that provides Media Company and its Network Properties with consent to the placing of cookies on end users’ browsers. If Advertiser fails to implement this mechanism (either as a feature of the Services or through its own similar mechanism, subject to Media Company’s approval of any such Advertiser provided mechanism) then Media Company may not be able to perform the Services under this Agreement. (c) All Advertising Material and other information or materials provided to Media Company by Advertiser (or by Advertiser’s authorized Agency on its behalf) shall comply with all applicable laws.”
(b) A new clause XII(i) shall be added at the end of Section XII and shall read as follows:
“(i) Media Company Data Privacy Responsibilities. (a) If and to the extent Performance Data contain any personal data of individuals located in European Territories, Media Company will only use Advertiser CRM Data for the purposes of providing the Services and shall process such Advertiser CRM Data in accordance with the Data Protection Addendum at https://www.NextRollgroup.com/terms/data-processing.” - The blank spaces reserved in Section XIV(d) shall be filled with “the State of California without giving effect to any conflict of laws principle” and “federal or state courts located in San Francisco County, California” subject to the XIV(h) below.
(a) “Advertiser Site” means websites owned or operated by Advertiser on which Advertiser (or Advertiser’s authorized Agency on its behalf) uses the Services.
(b) “Advertiser CRM Data” means any email addresses or other CRM data (excluding hashed emails) about an Advertiser’s end user, customers or prospective customers directly provided by Advertiser (or authorized Agency on its behalf) to NextRoll in connection with the Services. Advertiser CRM Data\ shall be considered “IO Details” a.
(c) “applicable laws” shall mean any applicable federal, state or foreign laws or regulations or any industry self-regulatory rules or guidelines (including the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the NAI Code of Conduct, the DAA Self-Regulatory Principles for Online Behavioral Advertising, EU Directive 95/46/EC and EU Directive 2002/58/EC and the General Data Protection Regulation that relate to a party or a party’s performance hereunder.”
(d) “European Territories” mean the European Economic Area and Switzerland. For the purpose of this Agreement, the “European Territories” shall continue to include the United Kingdom, even after the United Kingdom leaves the European Economic Area following Brexit.
(e) “Media Company Properties” is deleted in its entirety.
(f) “Network Properties” means the websites on which Media Company purchases digital media on behalf of Advertiser (or Advertiser’s authorized Agency on its behalf) either through direct deals with publishers or through RTB exchanges, in each case, as available through the Platform.
(g) “Performance Data” means (x) data regarding a campaign gathered during delivery of an Ad pursuant to an IO (e.g., number of impressions, interactions, and header information), and (y) data gathered by Media Company from Advertiser Sites with Advertiser’s consent (or the consent of Advertiser’s authorized Agency on its behalf), including hashed end user email addresses but excluding Site Data or IO Details.
(h) “Third Party Ad Server” is deleted in its entirety.