This Addendum (this “Addendum”) to the AAAA/IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS VERSION 3.0 (the “IAB Terms and Conditions”) is entered into by and between the PMG Worldwide, LLC (“PMG” or “Agency”) referenced on the corresponding order ((“IO” as generally defined below) and the Media Company referenced on the corresponding IO. This Addendum shall be deemed incorporated by reference into any corresponding IO entered into between Media Company and Agency on or after the Effective Date above.
In the event of any inconsistency between the IAB Terms and Conditions, the corresponding IO and this Addendum (collectively the “Agreement”), the superiority of governing terms and conditions are: first, the IO; second, this Addendum; and third, the IAB Terms and Conditions.
References to Sections herein refer to sections of the IAB Terms and Conditions unless stated otherwise. Capitalized terms defined in the IAB Terms and Conditions will have the same meaning when used in this Addendum unless otherwise defined in this Addendum.
This Addendum is subject to change from time to time at PMG’s sole discretion, provided that such changes shall apply only to IOs (or amendments thereto) between the Media Company and PMG that are entered into after the effective date of such changes.
The IAB Terms and Conditions are hereby amended as follows:
Definitions.
The following definitions are hereby added:
“Agency Privacy Policy” means the Agency’s Privacy Statement, which can be found at: https://agencypmgstage.wpengine.com/privacy-policy/.
“Impressions” means the number of times a Creative is served to, and received by, a unique visitor on Sites as measured by Agency or Agency’s designated Third Party.
“Creative” means any type of advertising creative served or otherwise provided by Agency within its advertising network, including, but not limited to, buttons, banners, Video Creative, text-links, pop-ups, and pop-unders.
“Tracking Technologies” means cookies, web beacons, pixels and other tracking and storage technologies.
“Video Creative” means In-Stream and In-Display video advertising units, as more fully described in the IAB Digital Video Ad Format Guidelines & Best Practices at https://www.iab.com/guidelines/digital-video-ad-format-guidelines-best-practices/.
The following definitions are hereby amended:
“Advertising Materials” means graphics, artwork, text, multimedia files, ad copy, URLs, video or computer code for Ads.
The definition of “IO” in the IAB Terms and Conditions shall be amended to include (without limitation) any and all purchase orders between Agency and Media Company.
“Media Company Properties” are websites and applications specified on an IO that are owned, operated, or controlled by Media Company.
“Network Properties” means websites and applications 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.
“Terms” means the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0., as amended by this Addendum.
Section II. Ad Placement and Positioning.
The second paragraph of Section II(d) of the IAB Terms and Conditions is hereby deleted in its entirety and replaced with the following:
“Media Company acknowledges that certain Advertisers may not want their Ads placed adjacent to content that promotes pornography, violence, the use of firearms, contains obscene language, or falls within another category stated on the IO (“Editorial Agency Guidelines”). Media Company shall comply with all Editorial Agency Guidelines along with all Advertiser specific guidelines.”
The following is hereby added to the IAB Terms and Conditions as Section II(e):
“Media Company represents and warrants that it shall not do, directly or indirectly, any of the following:
(i) Intentionally place Advertising Materials on blank web pages or on web pages with no content; stack Advertising Materials (for example, and without limitation, place them on top of one another so that more than two Ads are next to each other); or place Advertising Materials on non-approved websites or applications, or in such a fashion that may be deceptive to the visitor.(ii) Place Ads on any websites or applications other than the specific URL specified by Agency for such Ad, or place Ads intended for Sites on or within any other media (for example, and without limitation, emails) other than the Sites listed on the applicable IO.(iii) Unless specifically approved by Agency in writing signed by an authorized representative of Agency, send Agency’s tags to any Third-Party trafficking team, Third-Party yield optimization company, or any other Third Party.(iv) Unless specifically approved by Agency in writing signed by an authorized representative of Agency, resell any Advertising Materials to other websites, applications, media companies, publishers, or any other Third Parties.(v) Unless specifically approved by Agency in writing signed by an authorized representative of Agency¬¬¬, alter, copy, modify, take, sell, re-use, or divulge in any manner any Advertising Materials provided by Agency.(vi) With respect to Third Party ad tags, pixels, tracking pixels, code, software or other components of an Ad, Ad Materials or PMG ad server or Third Party Ad Server (“Components”): (a) misappropriate any part of the Components or alter, modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect of the Components; (b) damage or tamper with any part of the Components; (c) breach any PMG or Third Party security measure; or (d) access the Components in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Components.(vii) Use the following methods of generating visitor interest in Sites or Advertising Materials (the violation of which would constitute a material breach to this Agreement): mailing emails to persons other that those persons who have requested to receive such emails; use of unsolicited email or inappropriate newsgroup postings to promote Advertising Materials; automatic refreshing of browsers to call Ads, auto-spawning of browsers; automatic redirecting of visitors; blind text links; misleading links, incentivized clicks, forced clicks (e.g., a person should never be ‘forced’ to click on a Creative because their browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks; purchasing keywords from a search engine service provider that include the trademark, service mark, or brand name of the Advertiser to which the applicable Creative relates, or any derivative of any such trademark, service mark, or brand name (“Advertiser Marks”), or purchasing online advertising inventory for purposes of running advertisements that include Advertiser Marks on websites, applications or within emails.
Agency will not be liable for payment for any impressions generated in violation of the Agreement. Media Company acknowledges and agrees that a breach of the foregoing representations and warranties could result in immediate, extraordinary and irreparable damage to Agency and its relationships with its clients, and that damages may be difficult to measure. Therefore, Media Company agrees that should it breach this Section II(e) of the IAB Terms and Conditions, then Agency is entitled to seek injunctive relief without the requirement to post a bond, in addition to other legal remedies it may pursue.”
Section III. Payment and Payment Liability.
The first paragraph of Section III(a) of the IAB Terms and Conditions is hereby deleted and replaced by the following:
“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 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 invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser.
If Media Company fails to send Agency invoice within 90 days of delivery of all Deliverables, Media Company forfeits its right to collect money for these invoices.”
Section III(b) of the IAB Terms and Conditions is hereby deleted and replaced with the following:
“Agency will make payment 45 days from its receipt of invoice. Media Company may notify Agency that it has not received payment in such 45-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. Media Company agrees to receive all payments in U.S. Dollars unless otherwise agreed between the parties in writing.”
Section V(a) of the IAB Terms and Conditions is hereby deleted and replaced with the following:
“Without Cause. Either Agency or Advertiser will be permitted to cancel this IO with 2 hours advance notice to Media Company without penalty.”
Section IX. Ad Materials.
Section IX is amended to add the following subsection:
“h. Intellectual Property. Advertiser shall own and retain all right, title and interest in any materials and content it creates and provides to Agency to provide to the Media Company for the media buy pursuant to the IO. Agency shall own and retain all right, title and interest in any materials and content it creates and provides to Media Company or that Media Company creates for Agency on behalf of Advertiser for the media buy pursuant to the IO. Media Company agrees that it shall not at any time assert or claim any interest in or to anything that may adversely affect the validity or enforceability of, any intellectual property or other proprietary right belonging to Agency or Advertiser hereunder. Except as expressly provided on the IO, Media Company shall not use or assist any other person or entity in using the intellectual property of Agency or Advertiser, or their parents or affiliated companies (either alone, in conjunction with or as a part of any other word, name, phrase or mark), (a) in any advertising, publicity or promotion or other disclosure, (b) in any in-house publication, (c) to express or imply any endorsement of any product or service, or (d) in any other manner or for any purpose whatsoever. Likewise, except as expressly provided on the IO, Advertiser and Agency shall not use or assist any other person or entity in using the intellectual property of Media Company, or their parents or affiliated companies (either alone, in conjunction with or as a part of any other word, name, phrase or mark).”
The following shall be added to Section IX(g) of the IAB Terms and Conditions:
“Notwithstanding the foregoing, Agency may use Media Company’s trademarks and logos to reference in Agency’s marketing and sales materials and website that Media Company is a part of Agency’s advertising network.”
Section X. Indemnification.
The following shall be added as Section X(a)(iv) of the IAB Terms and Conditions:
“or (iv) relating to the content of the Sites in which the Ads appear.”
Section X(c) of the IAB Terms and Conditions is hereby deleted and replaced with the following:
“Only to the extent Agency is indemnified by Advertiser, Agency will indemnify, defend 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 the content or subject matter of any Ad or Advertising Materials used by Media Company in accordance with these Terms or this IO.”
Section XI. Limitation on Liability.
The following shall be added to Section XI of the IAB Terms and Conditions:
“IN NO EVENT SHALL AGENCY’S OR ADVERTISER’S AGGREGATE LIABILITY TO MEDIA COMPANY UNDER THE AGREEMENT, EXCEED THE AMOUNT PAID BY AGENCY OR ADVERTISER TO MEDIA COMPANY DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENTS GIVING RISE TO SUCH LIABILITY.”
Section XII. Non-Disclosure, Data Ownership, Privacy and Laws.
The following shall be added to the IAB Terms and Conditions as Section XII(i):
“Media Company understands and agrees that Agency collects non-personally identifiable data in connection with serving ads on Sites. Agency has the right to use and disclose such data for any purpose which is not inconsistent with the Agency Privacy Policy.
For avoidance of doubt, and to the maximum extent permitted by law, Media Company hereby represent, warrants and covenants that: (i) it will at all times comply with any and all applicable laws, including, without limitation, privacy and data protection laws and regulations (including, without limitation, General Data Protection Regulation); (ii) it shall maintain a privacy policy that governs the pages on which Ads are displayed, and Media Company shall ensure that there is a reference in its privacy policy to Agency’s Privacy Policy. Media Company shall ensure that it will obtain all required informed consents and/or have any and all ongoing legal bases, for allowing Agency to use and process the data in accordance with this Agreement and the transfer of such data by Agency to its affiliates, subsidiaries and subcontractors, for the provision of the services and the performance of this Agreement. Such privacy policy will permit Agency’s collection and use of data by Agency in accordance with Agency’s Privacy Policy, and will also clearly state that all information that a user submits within or in connection with any Ad is governed by the Advertiser’s privacy policy, or of the company engaged by the Advertiser to collect such information; and (iii) it shall ensure that it complies at all times with the IAB transparency and consent framework and any amendment and/or update thereto.
Media Company acknowledges and agrees that Agency and its advertisers use Tracking Technologies to collect or receive information from Sites and elsewhere on the internet and use that information to provide measurement services and targeted ads.
Media Company represents and warrants that (i) Sites are not websites or online services directed to children as defined by the Children’s Online Privacy Protection Act (15 U.S.C. §6501–6506), or (ii) if any Site is a website or online service directed to children that does not “target children as its primary audience,” Media Company will age screen all users and prevent users who self-identify themselves as under age 13 from viewing pages on which Ads are placed.Media Company represents and warrants that all Sites delivering impressions in jurisdictions in which informed consent is required for the storing, use and/or accessing of cookies or other information on an end user’s device (such as, but not limited to, the European Union (EU)) will be fully compliant with all and any applicable laws and regulations, including, but not limited to, all requirements to obtain consumer consent before the placement of third-party cookies.”
Section XIII. Third Party Ad Serving and Tracking.
The following shall be ended to the end of Section XIII(a) of the IAB Terms and Conditions:
“which such consent shall not be unreasonably withheld, conditioned, or delayed.”
Section XIV. Miscellaneous.
The blank spaces in Section XIV(d) of the IAB Terms and Conditions shall be read as “Texas” and “the federal and state courts located in Ft. Worth, Tarrant County, Texas,” respectively.
The following shall be added as Section XIV(i) of the IAB Terms and Conditions:
“In the event that any provision of this Agreement is held invalid or unenforceable by a court with jurisdiction over the parties (i) such provision will be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (ii) the remaining terms, provisions, covenants, and restrictions of will remain in full force and effect.”
The following shall be added as Section XIV(j) of the IAB Terms and Conditions:
“Media Company must file an action against PMG, its parent or any affiliate (including for non-payment) no later than 2 years after the time in which the claim has occurred. Media Company waives the right to file an action arising directly or indirectly from the terms of the Agreement under any longer statute of limitations.”
The following shall be added as Section XIV(k) of the IAB Terms and Conditions:
“Media Company represents and warrants that it will clearly and conspicuously post notice on its website, or provide a link to a post, that indicates the following:
(i) A statement that indicates that data may be collected for the purposes that Media Company collects said data.(ii) A description of the types of data that is collected by Media Company (i.e., Personally Identifiable Information, Precise Location Data, Directory Data, etc.).(iii) A description explaining why data may be collected by, or transferred to third parties; and(iv) A conspicuous link to an opt-out mechanism.”
The following shall be added as Section XIV(l) of the IAB Terms and Conditions:
Modifications of any IO are not binding unless made in writing and acknowledged in writing by an authorized representative of the party against whom the modification is sought to be enforced. For purposes of this provision, writing includes email.
The following shall be added as Section XIV(m) of the IAB Terms and Conditions:
Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS OR WARRANTIES SET FORTH IN THE STANDARD TERMS OR THIS ADDENDUM, EACH PARTY TO THE IO DOES NOT MAKE, AND DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THE TERMS OR THE IO.
Last modified: June 4, 2020