TERMS & CONDITIONS

Documentation reproduced from Publisher Platforms MSA with Monetization Schedule version 20181203.

OATH PUBLISHER PLATFORMS MASTER SERVICES AGREEMENT

This Publisher Platforms Master Services Agreement (the “MSA”) is entered into between the entity listed in Section 1 of the attached Oath Contracting Addendum (“Oath Signatory” or “Oath”) and the entity that accepts this MSA via Oath’s registration portal (“Company”). This MSA shall be effective on the date of Company’s acceptance as recorded by Oath’s systems (the “Effective Date”) and continue until terminated as provided in Section 10 below. Oath and Company may each be referred to as a “Party” or collectively as the “Parties”. In consideration of the foregoing, the Parties agree as follows:

This MSA governs Company’s access to and use of, one or more of Oath’s platforms, tools, Dashboards, Oath APIs and/or services, which in some instances may also bear Oath’s “ONE by AOL”, “Yahoo!” or other branding (each a “Service” and collectively the “Services”). Oath reserves the right to provide any of the Services, in whole or in part, through any Oath Affiliate(s). The terms associated with each Service shall be specified in one or more schedules (each a “Schedule”) associated with this MSA and collectively, the MSA and associated Schedule(s) shall be referred to as the “Agreement”.

COMPANY AGREES THAT THIS AGREEMENT SUPERSEDES ALL PRIOR EXISTING AGREEMENTS BETWEEN COMPANY AND OATH, AOL ADVERTISING INC., YAHOO INC. OR ANY OF THEIR RESPECTIVE AFFILIATES WITH RESPECT TO ANY OF THE SERVICES HEREIN, AND SHALL EXCLUSIVELY GOVERN COMPANY’S USE OF THE SERVICES AS OF THE DATE OF ACCEPTANCE. OATH MAY, AT ITS SOLE DISCRETION, UPDATE OR AMEND THE TERMS OF THIS AGREEMENT OR ANY ASSOCIATED SCHEDULE OR AMENDMENT BY PROVIDING ELECTRONIC NOTICE TO COMPANY (EMAIL OR NOTICE VIA THE DASHBOARD TO SUFFICE).

1. Services

Oath offers a variety of Services to Company, which Company may select by entering into one or more Schedules. Each Schedule shall be governed by the terms contained in this Agreement, but shall be an independent document that may be terminated or renewed individually under the terms of this Agreement.

1.1 General Service Provisions. 

Company is responsible for providing the necessary resources and development work to enable Company video player(s), web page(s), application(s) and/or ad server(s), as applicable, to access and interact with the Service in cooperation with Oath and in accordance with the technical integration specifications made available in the Licensed Tools.

1.2 Integration Obligations. 

For various Services, Company may integrate with Oath’s systems through a variety of method including Tags, server to server integration, an SDK or any other method mutually agreed to between the Parties. Oath may condition use of any particular integration method on acceptance of certain specific technical or legal obligations. Oath shall provide notice to Company (email to suffice) of the additional legal terms and/or technical requirements for each particular integration method agreed to by Company.

1.3 Account Obligations. 

To access and participate in the Services, Company may be required to complete a registration process and create an account by providing current, complete and accurate information to Oath. Upon completion of the registration process to Oath’s satisfaction, Oath shall provide Company with a log-in user ID for the applicable Dashboard and access to the Oath APIs consistent with the terms of this Agreement. Company is responsible for any actions or activities under Company’s account, whether or not Company has authorized such activities or actions, unless such action is a result of a breach of Oath’s systems, and Company must promptly notify Oath of any unauthorized use of Company’s account. 

2. Payment 

Oath will pay all revenue payments to Company within sixty (60) days after the end of the month in which such revenue was earned by Company. Oath will make revenue payments to Company only when the outstanding balance exceeds US$250.00 (or the equivalent in the applicable foreign currency if, pursuant to the Oath Contracting Addendum, Company is to be paid in a currency other than U.S.D.) until termination of Company’s account for the applicable Service. Except as otherwise agreed upon by the Parties, all payments will be made in the currency set forth in the Oath Contracting Addendum. If Company utilizes any fee-based services, Oath may deduct such fees from payments to Company, or if payments to Company are insufficient to cover the fees, bill Company for such fees. To ensure timely payment, Company must notify Oath of any changes to its account information, including change of address, phone or email address. If Company disputes any payment made by Oath in connection with any of the Services, Company must notify Oath in writing within thirty (30) days of any such payment. Failure to notify Oath in such time will result in Company’s waiver of any claims related to such disputed payment. Oath reserves the right to withhold payment if Company (a) breaches the Agreement, or (b) engages in any behavior prohibited by the Oath Online Content and Advertising Policy Terms. If Oath finds that Company has engaged in behavior prohibited by the Oath Online Content and Advertising Policy Terms and Oath has already made payment to Company, Oath may offset such amounts against future payments to Company; however, if such amounts are insufficient, Oath may bill Company directly for any over-payment. Oath will not withhold payment with respect to unaffected Placements, as long as Oath itself has received full payment for the unaffected Placements and the relevant Buyer has not raised a concern about deceptive/inappropriate conduct regarding the unaffected Placements. All fees from Company to Oath hereunder, other than those which Oath has netted from payments, are payable within thirty (30) days after the date of invoice with respect to the calendar month in which the Service was utilized. Invoices shall be sent to the billing contact set forth in this Agreement. Any dispute regarding an invoice must be submitted to the other Party in writing within thirty (30) days of receipt or it shall be deemed waived. If Company utilizes the Services outside of the United States, Company acknowledges that payment will only be made after Company fulfills Oath’s invoicing requirements.

3. Licenses.

3.1 Subject to the terms and conditions of this Agreement, Oath grants to Company a limited, non-assignable, non-transferable, non-exclusive, non-sublicensable right and license to access the Service, to use the Tags or other integration method and to perform or display Ads on the Company Sites (where applicable), and to access the Licensed Tools (where applicable), solely for the purpose of performance of this Agreement and solely during the Term. Company shall use such Licensed Tools for Company’s internal use and solely for the purposes identified in and authorized by this Agreement. Except for the limited license rights expressly granted to Company in this Agreement, and in addition to those ownership rights of Oath set forth in the Agreement, as between the Parties, Oath retains all right, title and interest in and to the Service, the Licensed Tools, the Tags and any content made available to Company via the Service.

3.2 Company grants Oath a limited license to use and display Company’s name and logo (in the form provided by Company) and the respective URLs of the Company Sites in connection with Oath’s sales and marketing materials during the Term. By listing Placements and soliciting Bids for advertising campaigns through the Services, or by bidding on Placements, Company grants Oath a limited, non-exclusive, fully paid-up license to display Placements (and content therein) in the Service to be viewed and bid on by Buyers in accordance with any Placement Settings defined by Company.

3.3 Except as may be expressly provided herein, neither Party shall have or obtain any rights in or to any intellectual property of the other Party in connection with this Agreement. Without limiting the generality of the foregoing, Oath retains all right, title and interest in and to the Services, the technology used by Oath to operate the Services, Oath’s Marks, and all enhancements made by Oath to any of the foregoing from time to time, including but not limited to all patent, trademark, copyright, trade secret and all other intellectual property rights in the foregoing.


4. Services Protection.

Oath may, in its sole discretion, take all actions reasonably necessary to protect the Services, other entities using the Services, Oath (and its suppliers or vendors) and Oath’s network, equipment and infrastructure, including but not limited to immediately suspending Company’s access to the Services without prior notice. Oath shall, as soon as reasonably practicable under the circumstances, provide Company with notice of such suspension as well as Oath’s reasons for the suspension.

5. Prohibited Content; Prohibited Activities.

Company agrees to abide by all of the requirements, obligations, restrictions and guidelines located in Oath’s “Online Content and Advertising Policy Terms”, which may be updated by Oath from time to time upon not less than thirty (30) days’ electronic notice, email or notice via the Dashboard to suffice, the current version is available at https://adspecs.oath.com/pages/oathsupplypolicies/?rnd=1.

Company agrees it shall abide by the Online Content and Advertising Policy Terms in effect at the time Company makes available Content and/or Ads. Failure to abide by the Online Content and Advertising Policy Terms may result in Oath withholding payment for a Placement that violates the policy where a Buyer has objected to the Placement, or, for repeated or significant violations, termination.

6 Measurement; Reports. 

6.1 Measurement. 

Oath shall have the responsibility in its sole and reasonable discretion for calculation of all statistics, measurements and payments, including without limitation, Impressions, Bids, invalid traffic, unique visitors and revenue or fees generated on or through the Service(s), as applicable. 

6.2 Reports.

Company acknowledges that in some cases, Oath will need to make adjustments to statistics reported in the Dashboard(s) (the “Reports”) due to invalid traffic, statistical errors, or third-party tracking. All information or statistics provided in Reports prior to Oath’s distribution of payment to Company or invoice for fees are for informational purposes only, and may not be used for billing purposes. Subject to those disclosure rights expressly set forth in this Agreement, the data contained in Reports is Oath’s Confidential Information.

7. Privacy.

For Company Sites that utilize any of the Services and are End User facing, the following privacy obligations shall apply.

7.1 General.

Oath is a member of the NAI, Digital Advertising Alliance (DAA), and European Interactive Digital Advertising Alliance (EDAA) and is committed to maintaining adherence with the NAI, DAA, and EDAA self-regulatory principles (SRPs). Company agrees that it shall take no action (or fail to take an action) that would jeopardize Oath’s membership in these organizations or cause Oath to violate the SRPs. Company recognizes that the SRPs, laws, regulations and other governmental actions are designed to protect the privacy of End Users within their jurisdictions, and so, regardless of the location of Company or of the Oath entity with which Company has entered into this Agreement, Company and Company Site(s) shall, if required by the local law of the End User, comply with all Relevant Privacy Requirements local to the End User; however if local law has no such requirement, then Company shall comply with all Relevant Privacy Requirements of its own local jurisdiction. The term “Relevant Privacy Requirements” shall mean, for purposes of this Agreement: (i) all applicable SRPs, laws, governmental regulations and court or government agency orders, decrees and policies relating in any manner to the collection, use or dissemination of information from or about users, user traffic or otherwise relating to privacy rights or with respect to the sending of marketing and advertising communications; (ii) any written agreements Company or Oath (where Oath makes Company aware of such agreement) may have with non-governmental certification or self-regulatory bodies; (iii) Company’s posted privacy policy; and (iv) for Mobile Apps, the terms of service for the applicable mobile operating system. Company represent and warrant that to the extent Company transmits, passes or otherwise provides any information regarding devices and/or end users to Oath and/or permit Oath to collect such information, it is provided, and was collected by Company, in compliance with all Relevant Privacy Requirements.

7.2 Company Site Obligations.

Company represents and warrants that: (i) Company’s Mobile Apps and Company Sites will contain a prominent link to Company’s privacy policy; (ii) that Company has provided all required notices, including an appropriate Opt-Out Mechanism, and obtained any and all consents or permissions necessary under Relevant Privacy Requirements, including, without limitation, all necessary and valid consents from individual end users to provide data to Oath and to authorize Oath’s use of such data as provided for herein. Oath hereby permits Company to identify Oath in Company’s privacy policy, and to provide a link to Oath’s privacy policy in Company’s privacy policy. Company further represents and warrants that at all times during the Term of this Agreement that it shall not transfer or transmit any PII or other sensitive data to Oath or onto the Service. “PII” or “Personally Identifiable Information” means information that identifies a specific person. It includes name, address, telephone number, email address, payment card number, and government-issued identification number but may include additional information as determined by the Relevant Privacy Requirements.

7.3 Opt-Out Mechanism.

On desktop and mobile websites, the Opt-Out Mechanism shall be a link to at least one of the SRP opt-out pages, which are currently located at http://www.networkadvertising.org/choices, http://www.aboutads.info and http://www.youronlinechoices.eu. On Mobile Apps, the Opt-Out Mechanism will be a description of how an End User can access a privacy device setting (e.g., Apple iOS Limit Ad Tracking).

7.4 Precise Geolocation.

Where Company collects, processes or discloses Precise Geolocation Data for advertising purposes, including Cross-App Advertising, from a Company Site to Oath: (a) Company shall ensure that the Company Site obtains express (i.e., opt-in) consent from End Users; and (b) the Company Site shall prominently post notice to End Users: (i) that their Precise Geolocation Data may be shared with third parties; and (ii) the purposes for which such data may be used, including Cross-App Advertising. “Cross-App Advertising” as currently defined by the Network Advertising Initiative (“NAI”), means the collection of data through applications owned or operated by different entities on a particular device for the purpose of delivering advertising based on the preferences or interests known or inferred from the data collected, or as may be amended by the NAI from time to time.

7.5 Protection of Minors.

Company represents and warrants that Company shall (1) comply with the relevant laws, governmental regulations and court or government agency orders, decrees and policies relating to advertisements (including behavior targeting of) “children” (as defined locally) in the jurisdictions in which the children are located; (2) designate to Oath all of Company’s Mobile Apps and Websites as having children’s or non-children’s content; (3) designate to Oath if any of Company’s Mobile Apps or Web Sites knowingly collect any personal information as defined by the relevant local law from children under the relevant age as defined by law; and (4) promptly designate the Mobile Apps and Websites to Oath in the event that any of its Company’s Mobile Apps or Websites begin to contain children’s content or otherwise if Company’s policy on data collection, use or disclosure from children changes.

8. Marks Usage.

Each Party agrees that it will not make any disclosure or public statement about the other Party or the Services or use a Party’s Marks or disclose the existence or terms of this Agreement, without the other Party’s prior written approval. Upon receiving a Party’s prior written approval for a particular disclosure or use, identical subsequent uses shall be deemed approved unless and until further instructions are provided by such Party. Notwithstanding the foregoing, during the Term, Oath may, at its discretion, disclose on its website, or in sales materials, or in order to provide the Services, that Company is a customer.

9. Taxes.

Each Party will abide by its tax obligations set forth in the Oath Contracting Addendum.

10. Term and Termination; Suspension; Effect of Termination.

10.1 Term.

This Agreement shall commence on the Effective Date and continue for a period of one (1) year (the “Initial Term”). This Agreement shall automatically renew for additional one (1) year periods (each, a “Renewal Term”) unless either Party provides written notice of its intent not to renew this Agreement a minimum of thirty (30) days prior to the expiration of the then current Term. Each such Renewal Term shall be on the same terms and conditions contained herein. The Initial Term and the Renewal Terms are collectively referred to as the “Term”.

10.2 Termination.

Either Party may terminate this Agreement or any associated Schedule for any reason or no reason whatsoever upon thirty (30) days advance written notice. Additionally, either Party may terminate this Agreement or any associated Schedule at any time in the event: (a) of a material breach by the other Party which remains uncured after seven (7) days written notice thereof; or (b) the other Party ceases to do business in the normal course, becomes or is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days or makes an assignment for the benefit of creditors.

10.3 Effect of Termination or Expiration.

Upon termination or expiration of this Agreement, all Services, and any licenses granted by Oath hereunder, shall immediately terminate and Company must remove all Tags from the Company Sites and cease delivery of any and all Ads. In the case of termination or expiration, each Party shall pay the other Party all uncontested amounts due during the next billing cycle.

11. Representations and Warranties.

Each Party represents and warrants to the other that: (a) it has the full right, power, and authority to enter into this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; (c) this Agreement constitutes a legal, valid and binding obligation when agreed to; and (d) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations. Additional representations and/or warranties contained in any particular Service schedule shall be additive to these representations and warranties.

12. Export Control and Anti-Corruption Laws.

Company agrees to comply with the export laws and regulations of the United States and trade controls of other applicable countries, including without limitation the Export Administration Regulations of the U.S Department of Commerce, Bureau of Industry and Security and the embargo and trade sanction programs administered by the U.S. Department of Treasury, Office of Foreign Assets Control. Company agrees to comply with all applicable anti-corruption laws, including without limitation the Foreign Corrupt Practices Act of 1977 and UK Bribery Act of 2010. Company further agrees to keep accurate books and records in relation to this Agreement.

13. Service Levels.

Except as specifically provided in a particular Service schedule, Oath does not guarantee the Service will be operable at all times, including during any downtime (a) caused by outages to any public Internet backbones, networks or servers, (b) caused by any failure of Company’s equipment, systems or local access services, (c) for previously scheduled maintenance, or (d) relating to events beyond Oath’s control, including any interruptions in Internet services.

14. Disclaimer of Warranties.

EXCEPT AS EXPRESSLY PROVIDED IN AN APPLICABLE SCHEDULE, THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY COMPONENTS) ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN AN APPLICABLE SCHEDULE, OATH EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, NOTWITHSTANDING ANY SUBSEQUENT ORAL STATEMENTS, APPLICABLE INDUSTRY STANDARDS, COURSE OF DEALING OR COURSE OF PERFORMANCE. OATH RESERVES THE RIGHT TO MODIFY, SUSPEND OR DISCONTINUE ANY ASPECT OF THE SERVICES AT ANY TIME, AND OATH WILL NOT BE LIABLE TO COMPANY OR ANY THIRD PARTY SHOULD IT EXERCISE SUCH RIGHT. OATH DOES NOT WARRANT THAT THE SERVICES SHALL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.

15. Limitation of Liability.

EXCEPT IN CONNECTION WITH A BREACH OF THE CONFIDENTIALITY PROVISIONS OR INDEMNITY OBLIGATIONS HEREIN: (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS, LOST BUSINESS OR COST OF REPLACEMENT SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, AND SUCH LIABILITY BETWEEN THE PARTIES WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (B) THE AGGREGATE LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE CAPPED AT AN AMOUNT EQUAL TO THE GREATER OF: (1) AGGREGATE AMOUNTS PAYABLE HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; OR (2) ONE HUNDRED THOUSAND DOLLARS ($100,000).

16. Indemnification.

16.1 Claims Subject to Indemnification.

Each Party (the “Indemnifying Party”) hereby agrees to defend, indemnify and hold harmless the other Party and its officers, directors, agents, affiliates and employees (each, an “Indemnified Party”) from any and all third party claims or liabilities (including reasonable attorneys’ fees) arising out of or related to the Indemnifying Party’s breach or alleged breach of a Party’s representations or warranties under this Agreement. In addition: (i) Company shall indemnify Oath and its officers, directors, agents, affiliates, and employees from any and all third party claims or liabilities (including reasonable attorneys’ fees) that Company has failed to fulfill its obligations under Section 7 above (Privacy); and (ii) Oath shall indemnify Company and its officers, directors, agents, affiliates and employees from any and all third party claims or liabilities (including reasonable attorneys’ fees) that the Service violates a third party’s intellectual property rights.

16.2 Process for Exercising Indemnification.

Any claim for indemnification hereunder shall be subject to the following provisions: (a) the Indemnifying Party shall be given prompt written notice of the claim by the Indemnified Party, provided that any delay in providing notice shall not relieve the Indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the Indemnifying Party was prejudiced by the delay; (b) the Indemnifying Party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that no settlement admitting liability on the part of the Indemnified Party may be made without the express written consent of the Indemnified Party; and (c) the Indemnified Party shall reasonably cooperate with the Indemnifying Party and its counsel at the indemnifying Party’s cost and expense.

17. Confidentiality.

Each Party acknowledges that Confidential Information may be disclosed to the other Party during the course of this Agreement. The Recipient agrees that it will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but in no event shall such protection be less than a reasonable standard of care, during the Term of this Agreement, and for a period of three (3) years following expiration or termination of this Agreement, to prevent the disclosure of the Confidential Information of the Discloser, other than to its employees, affiliates, subsidiaries or other agents (collectively, “Representatives”) who have a need to know such Confidential Information for purposes of performing pursuant to this Agreement and who are bound in writing by restrictions regarding disclosure and use of such information comparable and no less restrictive than those set forth herein. The foregoing obligations shall not apply to the extent Confidential Information must be disclosed by the Recipient to comply with any requirement of law or order of a court or administrative body (provided that, to the extent lawfully able to do so, Recipient will notify Discloser of the issuance of such order as soon as practicable, to reasonably cooperate with Discloser (at Discloser’s expense) in its efforts to convince the court or administrative body to restrict disclosure), and to disclose only the portion of such information that it is legally required to disclose. Confidential Information does not include information that: (a) is known to or in the possession of Recipient prior to its receipt from Discloser hereunder, as evidenced by the Recipient’s written records; (b) is or becomes known or generally available to the public through no act or omission of Recipient or its Representatives in breach of this Agreement; (c) is received by Recipient from a third-party that is not under any obligation of confidentiality with respect to such information; or (d) is independently developed by Recipient without use of or reference to the Discloser’s Confidential Information.

18. Severability and Waiver; No Joint Venture; No Exclusivity.

If any provision of this Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claimed to have waived. This Agreement shall be interpreted as if drafted jointly by the Parties. The Parties are independent contractors, and no agency or similar relationship shall be created by this Agreement, and neither Party will have any authority to assume, create, or enlarge any obligation or commitment on behalf of the other. Nothing in the Agreement shall limit the right of either Party to enter into similar arrangements with third parties or to establish, maintain or expand a sales force, or contract with or to utilize other exchange partners, in any territory in the world at any time.

19. Notices.

Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes: (a) on the delivery date if delivered by confirmed electronic mail and followed up with postal delivery; (b) on the delivery date if delivered personally to the Party to whom the same is directed; (c) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (d) five business days after the mailing date, whether or not actually received, if sent by mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. In the case of Oath, such notice will be provided to both the Vice President – Platforms and the Vice President – Legal, Oath Signatory, at the address of Oath Signatory set forth in the Oath Contracting Addendum. In the case of Company, the notice address shall be the address for Company provided by Company during the signup process (or if Company failed to provide such address, any address Company associates with receiving payments under this Agreement), with the other relevant notice information, including the recipient for notice to be as reasonably identified by Oath.

20. Force Majeure.

Neither Party will be liable for any failure or delay in its performance under this Agreement due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, strikes, riot, war, sabotage, terrorism and governmental action.

21. Miscellaneous.

This Agreement shall constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof, and this Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter. This Agreement shall be interpreted, construed and enforced in accordance with the laws set forth in the Oath Contracting Addendum except for its conflicts of laws principles, and each Party irrevocably consents to the exclusive jurisdiction of the courts or arbitration panel set forth in the Oath Contracting Addendum over all claims and all actions to enforce such claims or to recover damages or other relief in connection with such claims. There are no intended third party beneficiaries of Oath’s duties or obligations under this Agreement, and no third party shall be permitted to assert any claim against Oath relating to the Agreement as an intended third-party beneficiary. This Agreement may be modified by Oath upon not less than thirty (30) days’ written notice to Company (email to suffice). Continued use of the Services by Company after the effective date of the modification will be deemed acceptance of the modification by Company. Sections 1, 2 (to the extent of any outstanding payment obligations), 4, 9, 11-18 and 21 of this Agreement, along with any provision that by its nature is an ongoing obligation, shall survive termination or expiration of this Agreement. This Agreement may be assigned by either Party to an Affiliate upon notice to the other Party. This Agreement shall inure to and be binding upon the Parties and their successors and permitted assigns. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Delivery of an executed signature page to this Agreement in a commercially accepted scanned electronic form shall be effective to the same extent as if such Party had delivered a manually executed counterpart.

22. Definitions.

In addition to any terms defined elsewhere in this Agreement, the following definitions shall apply to this Agreement:

Ad” means advertising materials of any type used or distributed under this Agreement. 

Affiliate” means any entity worldwide that, directly or indirectly, is owned or controlled by or is under common ownership or control with a Party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% or more of the voting equity securities or other equivalent voting interests of the entity.

Bid” means the maximum amount a buyer specifies they are willing to pay to display an Ad in an available Placement.

Buyer” means an advertiser, agency, demand side platform or other party who places bids through, and/or otherwise purchases online advertising inventory from, the Service(s).

Company Site” means any website, application, or other media owned or operated by Company, or on which Company is otherwise legally authorized to act in the manner contemplated by this Agreement.

Confidential Information” means information regarding disclosures, trade secrets, personnel, products, customers, financial data, marketing and pricing strategies, services, business plans, methods, computer systems architecture, network configurations, any information which is governed by any now-existing or future non-disclosure agreement between the Parties, and any other information which is or should reasonably be understood by Recipient to be of a confidential or proprietary nature.

Dashboard” means the user interface provided by Oath through which Company may access a Service or receive reporting statistics in connection with the use of a Service.

Discloser” means the Party disclosing Confidential Information to the Recipient.

Effective Date” means the day on which Company accepted these terms via a click-through process as established by Oath’s business records.

End User” means a human visitor to a Company Site.

Impression” means an instance in which an Ad is served to, and received by, an End User on a Company Site as measured by Oath, not including automated page refreshes. Notwithstanding the foregoing, a video Ad served with any companion banner shall count as a single Impression as measured by Oath.

Licensed Tools” means, as applicable, any necessary Oath APIs, Dashboard(s), SDK, code or software (including accompanying required documentation and registration process and any updates and enhancements). 

Marks” means a Party’s trademarks, service marks, logos and trade dress.

Market Price” means the price established by Oath’s auction mechanism for a Placement.

Mobile Apps” mean Company Sites that are made available to End Users via downloadable mobile applications.

Oath Affiliate” means Oath Inc., Yahoo Holdings Inc., Yahoo Holdings International B.V. and any entity controlled by any of the foregoing.

Placement” means a uniquely defined, named and described advertising opportunity on a Company Site for desktop, mobile web, mobile applications, Connected TV, or other digital screen types.

Precise Geolocation Data” means any information that identifies or is capable of determining with reasonable specificity the actual physical location of an End User or device (e.g., GPS level latitude/longitude coordinates, location-based Wi-Fi triangulation or cellular tower data).

Prohibited Content” shall have the meaning given in the Online Content and Advertising Policy Terms references in Section 5 above.

Recipient” means the Party receiving Confidential Information.

Reserve Price” means the minimum price set by Company for a particular Placement.

Tag” means a web beacon, pixel, including embeddable JavaScript, flash, or other unique technology or tracking code provided by Oath that is designed to be inserted into the code of a Company Site, which communicates with servers designated by Oath and requests transmission from those servers of Ads.

 

INTERNATIONAL ADDENDUM (Published Aug 1, 2018)

The following terms and conditions shall apply and shall supersede any terms above that may conflict.

1. Contracting Entity.

Except as otherwise set forth in a Schedule, Oath Signatory is set forth in the table below, and this Agreement is subject to the referenced jurisdiction and governing law therein:

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2. Currency and Taxes.

This Agreement is subject to the following currency and tax provisions:

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3. Currency Conversion. 

In the event that a currency conversion is required, Oath will calculate the value of the fee using the monthly closing rate sourced from Oanda website for the applicable month.

 

MONETIZATION SCHEDULE  (Published June 12, 2018)

This Monetization Schedule to the Publisher Platforms Master Services Agreement (the “Schedule”) is entered into between the entity listed in Section 1 of the attached Oath Contracting Addendum (“Oath Signatory” or “Oath”) and the entity that accepts this Schedule via Oath’s registration portal (“Company”). This Schedule shall be effective on the date of Company’s acceptance as recorded by Oath’s systems (the “Schedule Effective Date”) and continue until terminated as provided in the Agreement. Oath and Company may each be referred to as a “Party” or collectively as the “Parties”. In consideration of the foregoing, the Parties agree as follows:

This Schedule governs Company’s access to and use of Oath’s Monetization Services under the terms and conditions established by the Oath Publisher Platforms Master Service Agreement (the “MSA”) between Oath and Company. This Schedule shall, upon acceptance by Company, become a Schedule under the MSA. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the MSA. In the event of any inconsistency between the terms of this Schedule and the MSA, the terms of this Schedule shall prevail.

COMPANY AGREES THAT THIS SCHEDULE SUPERSEDES ALL PRIOR EXISTING AGREEMENTS BETWEEN COMPANY AND OATH, AOL ADVERTISING INC., YAHOO INC. OR ANY OF THEIR RESPECTIVE AFFILIATES WITH RESPECT TO ANY OF THE SERVICES HEREIN, AND SHALL EXCLUSIVELY GOVERN COMPANY’S USE OF THE SERVICES HEREIN AS OF THE DATE OF ACCEPTANCE. OATH MAY, AT ITS SOLE DISCRETION, UPDATE OR AMEND THE TERMS OF THIS SCHEDULE BY PROVIDING ELECTRONIC NOTICE TO COMPANY (EMAIL OR NOTICE VIA THE DASHBOARD TO SUFFICE).

Services Selection

1. Services.

Oath offers the Placement Monetization Service through which Company may monetize inventory on the Company Site(s) by offering its display, mobile, video or other types of Placements to Buyers and through which Buyers may bid on such Placements. The Buyer with the winning Bid shall be provided access to the Placement to deliver an Impression to an End User.

1.1 Company agrees to the following:

(a) Company shall provide accurate data and information regarding Placements, including descriptions and other characteristics of the Placements.

(b) Ads may be sourced and displayed through the Platform in accordance with the Ad configuration settings as made and modified by Company using the Dashboard (“Ad Settings”). Placements may be sourced through the Platform in accordance with the Placement configuration settings as made and modified by Company using the Dashboard (“Placement Settings”). The Service shall receive Bids from Buyers in response to the bid requests made by Company. All delivery shall be subject to frequency capping, volume capping and targeting parameters established by Oath and/or Buyers.

(c) Oath may determine, in its sole discretion, which Placements will be made available to Buyers.

(d) For the delivery of video Ads, an Ad is considered delivered on the display of the first second of the Ad to an End User as recorded by the Oath ad server.

(e) Ads may be served through Oath’s ad server and/or a Buyer’s ad server. Oath will track delivery of Ads using its ad server. All campaign reporting will be provided through the Dashboard.

1.2 Gemini.

If Company selects to make Placements available for monetization through the Gemini native advertising service (“Gemini”), for the purposes of serving Gemini Ads, in addition to the requirements defined in the Agreement, an Impression for a Gemini Ad shall occur only when the Gemini Ad has been at least fifty percent (50%) in view for more than one (1) second of time. Oath reserves the right to include links within the Gemini Ads to clarify the sponsored nature of the Gemini Ads and Company will at no time modify or remove any such link.

2. Payment.

2.1 Revenue Minus Fees

For each opportunity associated with a particular Placement, the Service determines a set of advertising campaigns that match the Placement according to the Ad Settings and Placement Settings. The Service then uses an auction mechanism along with Bids submitted and the Reserve Price to select a particular Ad, if any, to display (the “Winning Ad”) and to determine the Market Price for the Winning Ad. Oath shall pay to Company the “Ad Revenue”, which shall equal the Market Price for such Placement less fees charged by Oath. The fees charged by Oath shall never be more than the difference between the Market Price and the Reserve Price. Except as provided in an amendment or schedule, or in the Display Marketplace only, the Ad Revenue shall never be less than the Reserve Price.

2.2 Reconciliation & Payout

After the end of each calendar month, Oath will reconcile payments due to Company for Ad Revenue earned during the month. Payment shall be made as provided in the MSA.

3. Integration.

Company shall cooperate with Oath to ensure accurate integration of Company’s Placements with the Service. Oath may require certain obligations to integrate Placements from the Company Sites that are participating in the Service, including agreeing to additional terms for technical integrations, as further directed by Oath. Company shall use reasonable efforts to promptly enable such integration.

If Company implements a consent management solution (e.g., the IAB’s GDPR Transparency and Consent Framework or Oath’s CMP), Company shall include Oath’s vendor ID (as provided by Oath) in its consent framework. Once the integration is enabled by Company, the Service may send requests for Bids from the Company Sites to Buyers. To display Ads sourced from external ad servers and networks, or to source Placements from external partners and networks, Company must cooperate with Oath so that the Service can properly interact with such external systems, including providing any applicable partner keys or codes and other technical requirements or information. Company acknowledges that Ads will be displayed, and Placements will be sourced, according to Company’s Ad Settings only to the extent made possible by any external ad server or network. As between Oath and Company, Company shall be solely responsible for all activity sourced through external ad servers and networks. Oath requires certain disclosure rights to ensure that the Service performs properly between its Publishers and Buyers.

As such, Company authorizes Oath to disclose its membership in the Service and grants Oath the right to use, disclose and display:

(a) Company’s name, logo, the Company Site URLs and IAB-based categorizations submitted by Company to potential Buyers as needed to perform its obligations under this Agreement; and

(b) Company’s name, the Company Site URLs and IAB-based categorizations, and Company identifiers to such Buyer for reporting purposes. Company agrees that Buyers acting as agents or demand-side providers for advertisers may disclose the information provided in subparagraph (b) to such advertisers.

Company may not disclose its membership in the Service or use Oath’s Marks without the prior written consent of Oath. If Company publishes an “ads.txt” file, Company agrees to place Oath as a valid source of inventory in this file.

4. Collection and Use of Information and Data.

Oath shall not, and shall not permit any Buyer to, use Bid Request Data (defined below) to create, improve or develop targetable segments that recreate Company’s audience.

4.1 Bid Request Data.

Through Company’s use of Services provided under this Agreement, Oath may collect and use certain data, including, without limitation, various identifiers (e.g., cookie IDs, advertising identifiers, etc.), counts and characteristics of Placements (including the content therein) and Ads (including the content therein) (collectively, “Bid Request Data”). Oath may use such information to provide the Service, provide Bid Request Data to Buyers who may bid on Company’s Placements, and, on an aggregated anonymized basis, may use Bid Request Data to improve the Service or share with third parties. Company acknowledges that certain portions of Bid Request Data specific to Company and identifiable of Company may be transmitted to third parties, depending on how Company configures its settings when using the Service, including but not limited to sharing Company domain name(s) and site-specific performance data with a Buyer that purchases Placements. Notwithstanding the prior sentence, with respect to Gemini, Oath may share Company domain name(s) and site-specific performance data with a Buyer that purchases Placements.

4.2 Other Data.

All data, statistics, and other information (except for Bid Request Data) derived from using the Services offered under this Agreement (collectively “Other Data”) may be used by Company only in connection with Company’s use of the Services, and may not be copied, exported or transferred from Oath’s Services. All Other Data is the Confidential Information of Oath and/or the party that provided the information. Company, as the recipient of Other Data, may not disclose any of it to any third party, except as permitted by the Agreement.

5. Indemnification.

This Section 5 supplements the indemnification provisions in the Agreement. Company is solely responsible for all content appearing around its Placements (excluding the content of the Ads themselves) and will defend, indemnify and hold harmless Oath (and its respective officers, directors, employees, shareholders, affiliates, representatives and agents) from and against any and all third-party claims or liabilities (including reasonable outside attorney’s fees) arising out of or related to Placements or the content surrounding the Placements (excluding the content of the Ads). Oath will defend, indemnify and hold harmless Company (and its respective officers, directors, employees, shareholders, affiliates, representatives and agents) from and against any and all third-party claims or liabilities (including reasonable outside attorney’s fees) that the Ads violate the intellectual property rights of a third party.

 

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