Documentation for Publisher Platforms Agreement and Services Schedule
Reproduced from version 20161110.1
PUBLISHER PLATFORMS AGREEMENT AND SERVICES SCHEDULE
This ONE by AOL: Publisher Platforms Agreement and Services Schedule (collectively, the “Agreement”) is entered into between AOL Advertising Inc. (“AOL”), a Maryland Corporation with its principal place of business at 770 Broadway, 4th Floor, New York, NY 10003 or the entity identified in the International Addendum below for entities domiciled outside of the United States of America, and the entity that accepts this Agreement via AOL’s registration portal (“Company”). AOL 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 Agreement governs Company’s access to and use of, one or more of AOL’s platforms, tools, Dashboards, AOL APIs and/or services (each a “Service” and collectively the “Services”). Each Service that otherwise incorporates this Agreement is more fully described below.
COMPANY AGREES THAT THIS AGREEMENT SUPERSEDES ALL PRIOR EXISTING AGREEMENTS BETWEEN COMPANY AND AOL OR ITS 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. AOL MAY, AT ITS SOLE DISCRETION, UPDATE OR AMEND THE TERMS OF THIS AGREEMENT BY PROVIDING ELECTRONIC NOTICE TO COMPANY.
In addition to any terms defined in the Advertising Services Schedule below, the following definitions shall apply to this Agreement:
“Ad" means advertising materials of any type used or distributed under this Agreement.
“AOL Affiliate” means AOL Inc. and any entity worldwide that, directly or indirectly, is owned or controlled by or is under common ownership or control with AOL Inc. 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.
“AOL API” means any of AOL’s offered application program interface(s) that provides advertising tools and services and related functionality as well as programmatic interaction with the Dashboard(s).
“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 Platform” means the Company API and technology platform(s) used by Company to sell and facilitate the display of Ads, and to interact with 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 Discloser’s 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.
“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.
“Dashboard” means the user interface provided by AOL 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.
“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 AOL, 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 AOL.
“Invalid Click” means any click on an Ad that: (a) causes the End User to reach a destination other than the intended destination (an incorrect redirect), which may be caused by a server malfunction on the Company Site, or because of alterations made by a Company Site or erroneous coding placed on the Company Site; or (b) results from applying repeated manual or mechanically automated clicks on a mouse or keyboard or any other non-human click generation processes (including but without limitation robots, spiders, scripts or other software) as well as all other clicks resulting from methods that AOL reasonably determines to be fraudulent in nature, or resulting from incentives or misleading or coercive means.
“Marks” means a Party’s trademarks, service marks, logos and trade dress.
“Market Price” means the price paid to Company for a Placement as calculated by the applicable Dashboard. The Market Price shall be the same or higher than any reserve price set by Company, but may be less than the Bid submitted by the Buyer.
“Opt-Out Mechanism” means a mechanism meeting the standards set forth herein that allows an End User to exercise choice to disallow the use of data in connection with interest-based advertising.
“Personally Identifiable Information (PII)” means information that identifies a specific person. It includes name, address, telephone number, email address, payment card number, and government-issued identification number.
“Placement” means a uniquely defined, named and described advertising opportunity on a Company Site.
“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).
“Recipient” means the Party receiving Confidential Information from the Discloser.
“Seller” means a party authorized to make Placements available for purchase on a Company Site.
“SDK” means a software development kit.
“Unique Visitor” shall mean a unique visitor to a Company Site as identified by AOL based on a proprietary AOL algorithm that may include multiple data points, including but not limited to: IP address, cookie or device IDs, user agent information, or timestamp information.
To access and participate in the Services, Company may be required to complete a registration process and create an account (“Account”) by providing current, complete and accurate information to AOL. Upon completion of the registration process, AOL will provide Company with a login user ID for the applicable Dashboard (the “AOL ID”) and access to the AOL APIs consistent with the terms of this Agreement.
Registration by Company for an Account is subject to AOL’s prior approval and Company’s compliance with the Agreement. AOL reserves the right to refuse registration for any reason. Company agrees to treat the AOL ID as AOL’s Confidential Information. Company agrees that its use of the applicable Dashboard(s) will be solely for the benefit of itself, and that it will not use the applicable Dashboard(s) for any purpose not contemplated by this Agreement. Company is responsible for any actions or activities under Company’s Account, whether or not Company has authorized such activities or actions, and Company must promptly notify AOL of any unauthorized use of Company’s Account.
3. Services License.Subject to the terms and conditions of this Agreement and each applicable Schedule, AOL grants Company a limited, non-exclusive, non-transferable, revocable, non-sublicenseable fully paid-up license during the Term of the Agreement to use the Services for which Company and AOL have a valid Schedule in place, and Company shall use such Services for Company’s internal use and solely for the purposes identified in and authorized by this Agreement.
4. Services Protection.
AOL may, in its sole discretion, take all actions reasonably necessary to protect the Services, other entities using the Services, AOL (and its suppliers or vendors) and AOL’s network, equipment and infrastructure, including but not limited to immediately suspending Company’s access to the Services without prior notice. AOL shall, as soon as reasonably practicable under the circumstances, provide Company with notice of such suspension as well as AOL’s reasons for the suspension. Company shall cooperate with AOL in any investigation into the events that led to the suspension.
5. Prohibited Content; Prohibited Activities.
Company agrees to abide by AOL’s “Online Content and Advertising Policy Terms”, which may be updated by AOL without notice from time to time, the current version of which is available at http://advertising.aol.com/advertising-policies/aol-online-content-and-advertising-policy. Company agrees it shall abide by the Online Content and Advertising Policy Terms in effect at the time Company makes available Content or Ads.
6. Ownership Rights.
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, AOL retains all right, title and interest in and to the Services, the technology used by AOL to operate the Services, AOL’s Marks, and all enhancements made by AOL 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.
Each of the Schedules will determine the specific revenue payments due from one Party to the other. Except as otherwise expressly set forth in a Schedule, AOL 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. AOL will make revenue payments to Company only when the outstanding balance for a specific Service exceeds US$50.00 (or until termination of Company’s Account for the applicable Service). Except as otherwise agreed upon by the Parties, all payments will be made in U.S. Dollars. To ensure timely payment, Company must notify AOL of any changes to its Account information, including change of address, phone or email address. If Company disputes any payment made by AOL in connection with any of the Services, Company must notify AOL in writing within thirty (30) days of any such payment. Failure to notify AOL in such time will result in Company’s waiver of any claims related to such disputed payment. AOL reserves the right to net any fees due to AOL against payments made to Company.
8. Counting; Reports.
Unless otherwise expressly set forth in a Schedule, AOL shall have the responsibility in its sole and reasonable discretion for calculation of statistics and payments, including without limitation, Impressions, Bids, Unique Visitors and Company Revenue or Ad Revenue (as such respective term is defined in the relevant Schedule) generated on or through the Company Sites, as applicable.
Company acknowledges that in some cases, AOL will need to make adjustments to statistics reported in the Dashboard(s) (the “Reports”) due to Invalid Clicks, statistical errors, or third party tracking provided by Buyers. All information or statistics provided in Reports prior to AOL’s distribution of payment to Company are for informational purposes only. Subject to those disclosure rights expressly set forth in this Agreement, the data contained in Reports is AOL’s Confidential Information.
9.2 Company Site Obligations.
9.3 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).
9.4 Precise Geolocation.
Where Company collects, processes or discloses Precise Geolocation Data for advertising purposes, including Cross-App Advertising, from a Company Site to AOL: (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.
AOL is in compliance with the Children’s Online Privacy Protection Act of 1998 (“COPPA”) and amendments thereto. Company represents and warrants that it shall: (a) comply with COPPA; (b) designate to AOL all Company Sites as having children’s or non-children’s content; (c) designate to AOL if any Company Sites knowingly collect any personal information, as defined by COPPA, from children under the age of thirteen; and (d) promptly notify AOL in the event that either its Company Sites become covered by COPPA or if Company’s policy on data collection, use or disclosure from children under the age of thirteen changes.
9.6 Additional European Union End User Obligations.
For End Users in the European Union, Company shall ensure that Company Sites use commercially reasonable efforts to: (a) disclose clearly, and obtain consent to, any data collection, sharing and usage that takes place on any Company Sites as a consequence of Company’s use of the Services; and (b) ensure that End Users are provided with clear and comprehensive information about, and consent to, the storing and accessing of cookies or other information on the End Users’ devices where such activity occurs in connection with a product to which this Agreement applies.
10. Marks Usage.
Except as expressly set forth in a Schedule, 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, AOL may, at its discretion, disclose on its website and in sales materials that Company is a customer.
11.1 Income, Sales and Use Taxes.
Each Party shall be solely responsible for income taxes (federal, state, local and otherwise) on any income derived from this Agreement. Charges for delivery of Services under this Agreement are exclusive of any applicable sales, use or similar type tax. Where sales, use or similar type taxes apply, such tax shall be itemized on the invoice delivered by the Party providing the services. The Party receiving such services agrees to pay any applicable sales, use or similar type taxes. AOL shall pay appropriate sales, use or similar type taxes at the same time as the other charges on the invoice unless AOL provides a valid exemption certificate to Company.
11.2 Tax Information.
Any Party receiving payment under this Agreement hereby agrees to provide appropriate and accurate tax withholding information if requested by the other Party. The Parties acknowledge that failure to provide such information could subject payments under this Agreement to reduction as required by law (including, for example, backup withholding under the Internal Revenue Code of 1986, as amended).
12. Term and Termination; Suspension; Effect of Termination.
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 forty-five (45) 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.
Either Party may terminate this Agreement or any 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. Additionally, either Party may terminate this Agreement for any reason or no reason whatsoever upon thirty (30) days advance written notice.
12.3 Effect of Termination or Expiration.
Upon termination or expiration of this Agreement, all Schedules, and any licenses granted by AOL hereunder or by such Schedules, 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.
13. 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.
14. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN AN APPLICABLE SCHEDULE, THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN AN APPLICABLE SCHEDULE, AOL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF TITLE, 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. AOL RESERVES THE RIGHT TO MODIFY, SUSPEND OR DISCONTINUE ANY ASPECT OF THE SERVICES AT ANY TIME, AND AOL WILL NOT BE LIABLE TO COMPANY OR ANY THIRD PARTY SHOULD IT EXERCISE SUCH RIGHT.
WITHOUT LIMITING THE FOREGOING, AOL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO ANY THIRD PARTY PRODUCT, SERVICE OR COMPONENT PROVIDED THROUGH OR AS PART OF THE SERVICES. AOL 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).
16.1 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 this Agreement.
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.
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. Notwithstanding anything to the contrary in this Agreement, AOL may use any non-personally and non-Company identifiable information that it has collected or received in providing the Services, to the extent necessary to perform, enhance or improve its services.
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.
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 facsimile and followed up delivery by mail; (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 U.S. 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 AOL, such notice will be provided to both the Executive Vice President for AOL Platforms and to the Deputy General Counsel, Transactions (fax no. 703-265-3992), each at the address of AOL set forth in the first paragraph of this Agreement. 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 and, as applicable, such recipient’s fax number, to be as reasonably identified by AOL.
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, failure of suppliers and governmental action.
This Agreement, together with any applicable Schedules hereto (or as may be subsequently executed by the Parties), which are incorporated herein by reference, shall constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof, and this Agreement and all applicable Schedules supersedes all prior agreements or representations, oral or written, regarding such subject matter. This Agreement and all Schedules shall be interpreted, construed and enforced in accordance with the laws of the State of New York except for its conflicts of laws principles, and each Party irrevocably consents to the exclusive jurisdiction of the courts situated in New York 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 AOL’s duties or obligations under this Agreement, and no third party shall be permitted to assert any claim against AOL relating to the Agreement as an intended third party beneficiary. This Agreement and Schedule may be modified by AOL 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, 6, 7 (to the extent of any outstanding payment obligations), 11, 13-18, 21 of this Agreement, along with any complimentary provision of the International Addendum associated with such Sections, shall survive the expiration or termination of this Agreement. Additionally, any terms and conditions in the Schedules which by their nature are ongoing obligations shall survive termination or expiration of such Schedules. 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 by facsimile or in a commercially accepted scanned electronic form shall be effective to the same extent as if such Party had delivered a manually executed counterpart.
ADVERTISING SERVICES SCHEDULE
22. The ONE by AOL: Advertising Services.
Company may elect to participate in one or more advertising services listed below. By receiving access to and/or using any such service (collectively and individually (depending on context), these advertising services will be referred to herein as the “Service”), Company agrees to be bound to those sections of this Schedule that relate to each individual Service, as well as any section that generally applies to all of the Services:
ONE by AOL: Display Marketplace
ONE by AOL: Mobile Marketplace
ONE by AOL: Video Marketplace
ONE by AOL: Video Platform
23. ONE by AOL: Display Marketplace.
If Company has selected to participate in the ONE by AOL: Display Marketplace (“ONE Display Marketplace”):
AOL offers the AOL Display Marketplace for advertisements, and related software and services through which Company may specify one or more display Placements and make each such opportunity available to Buyers to purchase Placements for display of their Ads.
AOL requires placement of Tags on the Company Sites participating in the Service. Company shall use reasonable efforts to promptly place and enable the Tags. Once the Tags are placed and enabled by Company, the Service may send requests for Bids from the Company Sites to Buyers.
24. ONE by AOL: Mobile Marketplace.
If Company has selected to participate in the ONE by AOL: Mobile Marketplace:
AOL offers the ONE by AOL: Mobile Marketplace (the “ONE Mobile Marketplace”) and related services (together, the “Mobile Services”) that will enable Company to specify one or more mobile Placements and make each such opportunity available to Buyers to purchase Placements for display of their Ads.
24.2 AOL Technology.
Company agrees to use commercially reasonable efforts to provide Placements to AOL during the Schedule Term, and shall install and incorporate any and all necessary enabling tags and technology, including, without limitation, AOL’s SDK (collectively, “AOL Technology”) to provide such Placements to AOL, as such AOL Technology may be updated, fixed or patched from time to time. For the purposes of providing Placements to AOL, AOL hereby provides Company with a limited, worldwide, non-exclusive, non-sublicensable, non-transferable, royalty-free, license to reproduce portions of the AOL Technology and distribute such portions in Company’s applications. Company may not distribute the AOL Technology to third-parties except as part of its own application(s) and may not use the AOL Technology for any purpose other than providing Placements to AOL.
25. ONE by AOL: Video Marketplace.
If Company has selected to participate in the ONE Video Marketplace:
AOL offers a group of ONE by AOL: Video marketplaces for advertisements, and related software and services (collectively, the “ONE Video Marketplace”) through which Company may specify one or more video Placements and make each such opportunity available to Buyers to purchase Placements for display of their Ads. Through the ONE Video Marketplace, Company shall provide Buyers with descriptions of Placements for Buyers to preview and approve (“Placement Description(s)”). Company agrees to provide and maintain accurate Placement Descriptions, which will include, at a minimum, the Internet domains of websites containing the Placements and the categories and ratings of any content associated with the Placements. AOL may determine, in its sole discretion, which of the marketplaces through which the Placements will be made available to Buyers using criteria applied equally to all participants in the ONE Video Marketplace.
26. ONE by AOL: Video Platform.
If Company has selected to participate in the ONE Video Platform:
AOL offers Company access to the ONE by AOL: Video Platform and related services (collectively, the “ONE Video Platform” or the “Platform”), which allows Company to create a private version of the Platform for those participants selected by Company (“Private Marketplace”). AOL will make the Private Marketplace available to Company through the Dashboard. AOL shall provide “Clearinghouse Services” to Company in connection with Company’s use of the Private Marketplace. For the purpose of this Schedule, Clearinghouse Services shall including: downloading reports from Company’s Account through the Dashboard; calculating amounts due from Buyers of Placements through the Private Marketplace; creating and sending invoices to such Buyers; reconciling invoiced amounts with such Buyers; making commercially reasonable efforts to collect amounts due from such Buyers; paying all banking fees due for payment and collection activities; and converting (at AOL’s expense) such collections and payments into and from any required foreign currencies.
If Company makes use of the Platform for any transaction for which billing information is not already integrated into the Platform, Company will need to enter into the Platform the requested billing information regarding such transaction (“Billing Information”) prior to the launch of such transaction. Company represents and warrants that all Billing Information Company provides will be complete, accurate and timely and Company agrees that Company will be solely and fully responsible for any errors or omissions in Company Billing Information.
27. General 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) to access and interact with the Service in cooperation with AOL and in accordance with the technical integration specifications made available in the Dashboard (“Specifications”).
27.2 Ad and Inventory Configuration.
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 AOL and/or Buyers. Unused Placements that are not filled with Ads may be redirected to Company via a redirect link provided or approved by Company, at AOL’s reasonable discretion.
If Company elects to activate its own demand sources (such as an ad network or other advertising exchange) for its Placements, Company shall be fully responsible for the activities of such demand sources within the Service(s), including ensuring that Ads provided by such demand sources comply with AOL’s Online Content and Advertising Policy Terms described in Section 5 (Prohibited Content; Prohibited Activities) of the Agreement.
For each opportunity associated with a particular Placement, the Service determines a set of advertising campaigns that match the Placement according to the Ad Targeting and Placement Restrictions (the “Matching Ad(s)”). The Service then uses an auction mechanism to select a particular Ad to display (the “Winning Ad”) and to determine the “Market Price” for displaying the Ad. The auction mechanism takes into consideration various inputs including: the winning Bid, the Bids of the other Matching Ads, and the minimum amount Company is willing to accept to display an Ad in an available Placement (“Reserve Price”) as set by Company. The Market Price will never be less than the Reserve Price.
27.5 Video Ad Delivery.
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 AOL ad server.
27.5 Ads and Placements from External Sources.
To display Ads through the Platform sourced from external ad servers and networks, or to source Placements through the Platform from external partners and networks, Company must cooperate with AOL so that the Platform 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 AOL and Company, Company shall be solely responsible for all activity sourced through external ad servers and networks.
For Placements sold through the Service, AOL shall pay to Company the Market Price for such Placement less fees charged by AOL. AOL shall determine the Market Price for each Placement based on the reserve price set by Company, the bids submitted by Advertisers, the fees charged by AOL and other auction-based factors.
28.1 Payment Terms.
After the end of each calendar month, AOL will reconcile payments due to Company for Advertisements sold during the month. If Company utilizes any fee-based services through the Dashboard, or incurs fees as described in Sections 28.3 or 28.4 below, AOL may deduct such fees from payments to Company, or if payments to Company are insufficient to cover the fees, bill Company for such fees.
28.2 Withholding of Payment.
AOL reserves the right to withhold payment if Company (a) breaches the Agreement or this Schedule, or (b) engages in any behavior prohibited by the AOL Online Content and Advertising Policy Terms. If AOL finds that Company has engaged in behavior prohibited by the AOL Online Content and Advertising Policy Terms and AOL has already made payment to Company, AOL may offset such amounts against future payments to Company; however, if such amounts are insufficient, AOL may bill Company directly for any over-payment. AOL will not withhold payment with respect to unaffected Placements, as long as AOL 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.
28.3 Market Opportunity Costs.
Company recognizes that offering each Placement through the Services creates costs for AOL and where such costs significantly outweigh the revenue generated through Placements, AOL may charge some of such costs to Company. Therefore, AOL reserves the right in its sole discretion to charge a fee (the “Market Opportunity Cost Fee”) of $0.0075 per thousand un-monetized Placements (i.e., Placements that receive no Bids or for which there are no successful Bids) in excess of 15 billion Placements made available by Company in any single calendar month collectively through all Services. For purposes of clarity only, Company agrees that AOL may count any Placement Company controls regardless of which Company Site, property or service on which such Placement shall be displayed.
28.4 Deal ID.
Sellers and Buyers may choose to make private arrangements for the disposition of certain Placements made available through a Deal ID or similar mechanism (a “Deal ID”). Because such Deal ID arrangements bypass the normal bidding process through which AOL is compensated, AOL reserves the right, in its sole discretion, to charge a fee for Deal ID arrangements (the “Deal ID Fee”), which shall be billed instead of (and not in addition to) any other fees imposed by AOL for such Placement. AOL shall bill the Deal ID Fee, if any, at the end of each month, and Company shall pay the Deal ID Fee within 30 days of receipt of the invoice.
29. Company License.
By listing Placements and soliciting Bids for advertising campaigns through the Service, Company grants AOL a limited, nonexclusive, fully paid-up license to display Company Placements (and content therein) in the Service to be viewed and bid on by Buyers in accordance with any Placement Restrictions defined by Company.
30. AOL License.
Subject to the terms and conditions of this Agreement, and in addition to the licenses provided to Company pursuant to the Agreement, AOL grants to Company a limited, non-transferable, non-exclusive, non-sublicensable right and license to access the Service, to use the Tags and to display Ads on the Company Sites, solely for the purpose of performance of this Agreement and solely during the Term. Except for the limited license rights expressly granted to Company in this Schedule, and in addition to those ownership rights of AOL set forth in the Agreement, as between the Parties, AOL retains all right, title and interest in and to the AOL Technology, the Tags and the Ads made available to Company via the Service.
AOL requires certain disclosure rights to ensure that the Service performs properly between its Publishers and Buyers. As such, Company authorizes AOL to disclose its membership in the Service and grants AOL the right to use, disclose and display: (a) Company’s name, logo, the Company Site URLs and IAB-based categorizations and any other bid request information 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 ID request information and statistics 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 AOL’s Marks without the prior written consent of AOL.
32. Ad Serving, Tracking and Reporting.
Ads may be served through AOL’s ad server and/or a Buyer’s ad server. AOL will track delivery of Ads using its ad server. All campaign reporting will be provided through the Dashboard.
33. Collection and Use of Information and Data
33.1 Bid Request Data.
Through Company’s use of the Service, AOL 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) that may be specific to and identifiable of Company (collectively, “Bid Request Data”). AOL shall not use the Bid Request Data to create segments related to Publisher or to improve End User profiles. AOL may use such information to provide the Service and, on an aggregated basis, may use and share Bid Request Data with third parties. AOL will not share any Bid Request Data that is specific to Company and identifiable of Company without first receiving Company prior approval. Company acknowledges, however, 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 which purchases Placements, if Company enables site-level reporting for such Buyer.
33.2 Other Data.
All data, statistics, and other information (except for Bid Request Data) derived from using or analyzing AOL’s products and services (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 AOL’s Services. All Other Data is the Confidential Information of AOL 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.
34. Indemnification; Intended Third Party Beneficiaries.
This Section supplements the indemnification provisions in the Agreement. Company is solely responsible for all content appearing on its Placements (excluding the content of the Ads themselves) and will defend, indemnify and hold harmless AOL (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 attorneys fees) arising out of or related to Company Placements (excluding the content of the Ads). AOL 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 attorneys fees) that the Service or the Ads violate the intellectual property rights of a third party.
35. Service Levels.
AOL does not guarantee the Service will be operable at all times, including during any down time (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 AOL's (or its wholly owned 'subsidiaries') control, including any interruptions in Internet services.
36. Term and Termination.
This Schedule will commence on the Schedule Effective Date and will continue in full force and effect for the Term of the Agreement. Either Party may terminate this Schedule for any reason or no reason whatsoever upon thirty (30) days advance written notice. Upon termination or expiration of this Schedule for any reason whatsoever, Company’s right to use the Service will be null and void and all rights and licenses granted to Company or AOL under this Schedule or Agreement will terminate immediately.
Where Company is domiciled outside of the United States of America, the following terms and conditions shall apply, and shall supersede any terms above that may conflict.
1. Contracting Entity
Company is contracting with the entity set forth in the table below rather than AOL Advertising, Inc., and this Agreement is subject to the referenced jurisdiction and governing law:
2.1 Company Site Obligations.
Each of the Services constitute an element of the AOL advertising environment, which uses information gathered across websites, application and devices, and about End User behaviors and (if applicable) Precise Geolocation Data, to help provide targeted advertisements and other services to End Users. Company represents and warrants that all Company Sites shall comply with the laws and regulations of the locations where each Company Site operates and/or collects data to ensure that Company has obtained the necessary consents from and/or has provided the necessary notices to End Users so that AOL may use the data collected to fulfill this purpose. Company represents and warrants that at all times during the Term of this Agreement that it shall not transfer or transmit any PII or Sensitive Data to AOL or onto the AOL Platforms. Company shall also designate to AOL each Company Site as being directed at children or not (as determined by relevant laws and regulations) or not. Company shall notify AOL (i) if any consent it has obtained is withdrawn, or (ii) if its designation of a Company Site as child-directed or not has changed.
2.2 Self-Regulatory Obligations.
Based on the contracting AOL entity, the following tax provision shall supersede the language in Section 11 of the Agreement: