These Standard Terms & Conditions, including any exhibit and/or schedule attached hereto (the "Terms & Conditions) govern the services described in the Service Order Form that incorporates these terms by reference (the "Service Order") entered into between AdRizer LLC. (“AdRizer”) and the client named in the Service Order (“Client”). Together, the Service Order and these Terms & Conditions constitute the “Agreement,” which is effective as of the effective date set forth in the Service Order (the “Effective Date”).
In consideration of the mutual promises below and other good and valuable consideration the sufficiency of which are hereby acknowledged, the parties agree as follows:
Capitalized terms used but not defined elsewhere in this Agreement shall have the following meaning:
“Ad Platform” means the third-party service provider, network and/or website, such as Facebook, Taboola or Outbrain, on or through which a Traffic Buy may be placed.
“Ad Unit” means an advertisement incorporating graphical, video, textual and/or auditory content that links, and is intended to drive traffic, to Client Properties.
“AdRizer Platform” means AdRizer’s proprietary software-as-a-service platform and associated technology and software, as made available by AdRizer to Client for use in connection with the Services.
“Client Properties” means the websites, apps, and other digital media properties owned and operated or controlled by Client.
“Term” has the meaning set forth in Section 5.
“Traffic Buy” means the purchase of inventory on an Ad Platform for the placement of Ad Units.
“Traffic Spend” means the gross amount of all fees and related costs billed by Ad Platforms for Traffic Buys made by Client using the AdRizer Platform or by AdRizer on Client's behalf during the applicable period, including, without limitation, all costs associated therewith and all taxes payable thereon.
“Users” means the end users of and visitors to Client Properties.
2.1. Services. From time to time, the parties may execute a service order, statement of work, work order or similar form incorporating these Terms & Conditions by reference (a “Service Order”). Once executed, AdRizer will provide and/or make available the planning, buying, monitoring, analysis, reporting, AdRizer Platform access and/or other services to be provided to Client, based on the service option selected in the Service Order (the “Services”) subject to the terms and conditions of this Agreement. The Services will be provided in connection with the Client Properties, and Ads Units will be placed on Ad Platforms, identified in the Service Order, which lists may be updated from time to time as requested by Client and approved by AdRizer in writing. Ads will be placed through AdRizer or Client accounts for each Ad Platform, as indicated on the Service Order, or as designated at the time the list of Ad Platforms is updated. In the event that that the account through which Ad Units are to be placed is not designated on the Service Order (or subsequent update) for one or more Ad Platforms, AdRizer may, in its sole discretion, place the corresponding Ad Units through its own account(s). To the extent that the Services are to include the creation of Ad Units, except as expressly instructed in writing, AdRizer shall have discretion to (i) select the articles and other content from the Client Properties to be used in the development of Ad Units, (ii) develop the Ad Units, including any and all thumbnail photographs and headlines to be used for such Ad Units, and (iii) allocate and optimize Traffic Spend across Ad Platforms.
2.2. AdRizer Platform. Depending on the service option selected, AdRizer may provide Client access to the AdRizer Platform to place Traffic Buys in connection with Ad Units created by Client and/or track the performance of Traffic Buys placed. Subject to the terms and conditions of this Agreement, AdRizer hereby grants to Client, during the Term, a non-exclusive, non-transferable right to access and use the AdRizer Platform solely for its own internal business purposes in accordance with the terms of this Agreement. AdRizer reserves any and all right, title and interest in and to the AdRizer Platform other than the limited rights expressly granted to Client in this Agreement.
2.3. Prohibited Conduct. Except as expressly permitted hereunder, Client shall not and shall not permit or authorize any third party to:
(i) copy, modify, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code architecture or algorithms of the AdRizer Platform,
(ii) bypass or breach any security device or protection used for or contained in the AdRizer Platform,
(iii) translate or create derivative works based on any of the AdRizer Platform,
(iv) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit or make the AdRizer Platform available to any third party,
(v) access or use the AdRizer Platform (or any part thereof) to build a competitive product or service,
(vi) generate queries clicks or other paid content through any automated or fraudulent means (including, but not limited to, robots, macro programs and internet agents), or use any other means to use commit click fraud, or encourage or require any persons or entities, with or without their knowledge, to click on paid content or enter queries by offering incentives or any other means that are manipulative, deceptive, malicious or fraudulent (collectively, "Click Fraud"), or
(vii) in connection with its use of the Service, violate, infringe or breach any applicable law or regulation, third-party intellectual property rights, and any third-party terms (e.g., Ad Guidelines or Terms of Service) or other contractual obligations with any third party.
Further, Client affirms that the Client Properties and Client Content do not and shall not contain or promote content that is illegal, inaccurate, misleading, fraudulent, pornographic, obscene, adult, mature, defamatory, hate-related or violent content. AdRizer reserves the right to immediately suspend Client's access to the AdRizer Platform without liability to Client if it suspects that Client is in breach of any of the foregoing.
2.4. Rights to Client Content. Client hereby grants to AdRizer, during the Term, a non-exclusive, transferable right, sublicensable right to (i) access copy, use, modify, distribute, transmit, display, perform, and create derivative works of any and all content from the Client Properties and any other content provided or made available to AdRizer by Client for use in connection with its performance of the Services (collectively, "Client Content"), for the sole purpose of (i) providing the Services to Client in accordance with the terms of this Agreement, including internal operations and functions, such as operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes. Notwithstanding the foregoing, AdRizer acknowledges and agrees that, as between Client and AdRizer, Client is the exclusive owner of the Client Content, and nothing in this Agreement shall be construed to limit, impair or adversely affect Client’s rights or interests in the Client Content.
2.5. Feedback. Client may from time to time provide suggestions, comments, or other feedback relating the Services or AdRizer Platform, including for enhancements to the features or functionality thereof (collectively “Feedback”). Client acknowledges that AdRizer shall have full discretion to determine whether and when (if at all) to proceed with the development of any requested enhancements, new features or functionality. Client hereby grants AdRizer a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (i) copy, use, modify, distribute, transmit, display, perform, and create derivative works of the Feedback, including without limitation, the right to develop, market, promote, sell, offer for sale products or services that include, embody or practice the Feedback.
3.1. Management & Access Fees. Client agrees to pay AdRizer the management and/or access fees set forth in the Service Order, which shall be calculated as a percentage of the Traffic Spend from the immediately preceding month, but not less than the minimum fee amount set forth in the Service Order, except that Client will not be responsible to pay the minimum fee during any Trial Period (defined below).
3.2. Traffic Spend. In the event that Traffic Buys are placed through AdRizer's accounts, Client shall reimburse AdRizer for all Traffic Spend in accordance with the terms of the applicable Service Order.
3.3. Invoices. Except as otherwise specified, AdRizer will invoice Client for all management and access fees, and all Traffic Spend reimbursement monthly in arrears, except that if/when the Traffic Spend reaches the advance limit set forth in the Service Order (as modified from time to time by agreement of the parties) prior to the end of the month, Client will be invoiced, for reimbursement of the Traffic Spend and the associated fees, upon reaching such limit. Client will pay all invoiced amounts within thirty (30) days of the invoice date.
3.4. Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated, that may be applicable to such amounts payable, excluding any taxes based solely on the income of either party. Client shall be solely responsible for payment of any and all such taxes.
3.5. Reporting. Client acknowledges and agrees that (i) the AdRizer Platform primarily uses its own proprietary technology to track the performance of Ad Units and manage Traffic Buys, (ii) it is the ability of this technology to collect and generate data in near real-time that enables AdRizer to optimize the performance of the Services, and (iii) thus, the reporting and invoices provided to Client in connection with the Services will incorporate primarily (and/or be based primarily on) data collected or generated by the AdRizer Platform, which shall be presumptively accurate, notwithstanding that, when averaged across all Ad Platforms, it may differ by up to one percent (1%) from similar data collected or generated by the applicable Ad Platforms. Client further agrees that, to the extent reporting and/or invoices include data provided by and/or collected from third-party sources, AdRizer is not responsible for (i) the accuracy of any such third-party data (which it may be unable to verify), or (ii) the availability of tracking information from such third party sources.
3.6. Billing Disputes. In the event that Client has good cause to dispute the Traffic Spend reported by the AdRizer Platform, AdRizer will provide Client a Traffic Spend report from the applicable Ad Platform for the sole purpose of verifying the Traffic Spend numbers reported by AdRizer. Client agrees that any such information will be subject to the confidentiality obligations of this Agreement, and any additional obligations to which AdRizer is subject by the Ad Platform. In the event that the Traffic Spend reported by AdRizer differs by more than five (5%) from the amount reported by the applicable Ad Platform, AdRizer will credit or Client will pay (depending on directionality of the discrepancy) the difference between the amounts reported.
3.7. Disputed Amounts and Fraud. In the event that AdRizer believes that any Traffic Buy costs have been fraudulently generated by any person, robot, automated program or similar device, including, without limitation, through any Click Fraud, AdRizer may, in its sole discretion, refrain from further Traffic Buys on the applicable Ad Platform. However, Client acknowledges and agrees that AdRizer shall not be responsible to detect or prevent, and Client shall be obligated to remit payment notwithstanding any such Click Fraud caused by any third party.
3.8. Suspension. AdRizer reserves the right to suspend Client’s access to the AdRizer Platform with notice in the event of Client non-payment of outstanding invoices.
4.1. Term. The Agreement will be effective from the Effective Date and continue for the period identified on the applicable Service Order (the “Initial Term”), and will thereafter automatically renew in accordance with the renewal term set forth in the Service Order (each, a “Renewal Period” and together with the Initial Term, collectively, the “Term”), unless either party provides the other party with written notice of non-renewal prior to the expiration of the then-current Term in accordance with the Service Order. Notwithstanding the foregoing, in the event that a trial period is specified in the Service Order (a “Trial Period”) either party may terminate the Service Order immediately by providing written notice to the other upon the first to occur of (a) the expiration of the period of time specified for the Trial Period, or (b) the Traffic Spend made by Client and/or AdRizer on behalf of Client reach the amount set forth on the Service Order (the “Trial Period Expiration”). If neither party terminates in writing within five (5) days after the Trial Period Expiration, the Agreement will continue in effect through the Initial Term and Renewal Periods, as applicable, in accordance with the foregoing. Except as otherwise specified in each applicable Service Order, the Initial Term and each Renewal Period will be one (1) year and notice of non-renewal is due at least thirty (30) days prior to the next Renewal Period.
4.2. Termination for Breach. Either party may terminate a Service Order immediately on written notice to the other party that it is in material breach of this Agreement; provided that, other than a breach by Client of Section 2.3, if the breach is capable of cure, the breaching party will have ten (10) days from the notice date to cure the breach to the non-breaching party’s reasonable satisfaction.
4.3. Termination for Convenience. Either party may terminate a Service Order at any time, for any reason or no reason, upon thirty (30) days’ prior written notice to the other party.
4.4. Effects of Termination. Upon termination or expiration of this Agreement Client shall immediately (i) cease its use of the AdRizer Platform and delete all access credentials, (ii) remove any script or code provided by AdRizer from the Client Properties, (iii) remove AdRizer's access rights, if any, from its ad server accounts, (iv) delete all of AdRizer's Confidential Information in its possession or control, and (v) pay AdRizer all amounts owed under this Agreement through the date of termination or expiration. Upon request by AdRizer, Client will affirm to AdRizer that it has complied with all of the foregoing.
As used herein, “Confidential Information” means, any and all information, regardless of whether it is in tangible or intangible form, disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is either (i) marked as confidential or proprietary, (ii) identified in writing as confidential or proprietary within thirty (30) days of disclosure, or (iii) would be reasonably understood by the Receiving party as the Disclosing Party’s Confidential Information at the time of disclosure. For the avoidance of doubt, AdRizer acknowledges that Personally Identifiable Information collected from Clients' Users is Client's Confidential Information, and Client acknowledges that information collected or generated by the AdRizer Platform relating to the performance of the AdRizer Platform or Services, including any aggregate or anonymized data, is AdRizer's Confidential Information; provided that, for purposes of marketing or other publication, (i) it shall not include information that identifies or would reasonably be expected to identify Client or any Client Properties or Users as the source of such data, and (ii) the data is bundled with similar data from AdRizer’s other clients.
Information shall not be deemed Confidential Information if such information: (x) is or becomes known to the Receiving Party without obligation of confidentiality, (y) becomes publicly available other than through a breach of this Agreement by the Receiving Party, or (z) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information.
The Receiving Party shall use reasonable measures to protect and avoid disclosure and unauthorized use or reproduction of the other party’s Confidential Information. Confidential Information of the Disclosing Party may be disclosed by the Receiving Party only to: (i) such employees and agents of the Receiving Party as may have a need to know such information in the course of their duties; and (ii) legal or financial advisors or potential acquirers or financing sources of the Receiving Party on a need to know basis, provided, that, in each case, such recipients are bound by contractual or professional ethical duties or confidentiality obligations at least as restrictive as those set forth herein. Confidential Information of the Disclosing Party may also be disclosed by the Receiving Party if required by law or valid order of a court or other governmental authority; provided that the Receiving Party delivers reasonable notice to the Disclosing Party and uses commercially reasonable efforts to cooperate with Disclosing Party’s attempt to obtain a protective order. Upon written request of the Disclosing Party, the Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party.
6.1. Mutual Warranties. Each party represents and warrants that (i) it has the required right, power and authority to enter into this Agreement and perform its obligations hereunder, (ii) it shall comply with all laws and regulations applicable to its business, including, without limitation, all privacy, security, and data protection laws and regulations of any applicable jurisdiction, with respect to its activities under this Agreement, (iii) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (iv) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
6.2. Additional Warranties. Client further represents and warrants to AdRizer that (i) it shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the AdRizer Platform and Services, including by safeguarding, and maintaining the confidentiality of, all access credentials, (ii) in the event of any such unauthorized access or use, immediately notifying AdRizer, (iii) it shall obtain and maintain all necessary licenses, consents and permissions, including with respect to the Client Content, necessary for AdRizer (including its agents) to provide the Services and otherwise perform its obligations under this Agreement, (iv) it shall provide adequate notice on all Client Properties to permit the collection and use of data contemplated under this Agreement, and (v) it shall use commercially reasonable efforts to ensure that its network and systems comply with any relevant specifications provided by AdRizer to Client in writing from time to time.
6.3. Processing subject to EU General Data Protection Regulation. Notwithstanding the aforementioned, if Client as a data controller is subject to the EU General Data Protection Regulation, Regulation (EU) 2016/679, the data processor agreement located at www.AdRizer.com/clientagreementdocs, together with its annexes (collectively, the "DPA") form an integral part of this Agreement, and to the extent of any conflict or inconsistency between the DPA and this Agreement, the DPA terms shall supersede and control with respect to any and all Personal Data (as defined therein) processed in connection with this Agreement.
6.4. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ADRIZER PROVIDES THE ADRIZER PLATFORM AND SERVICES ON AN “AS-IS” AND "AS AVAILABLE" BASIS AND DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ADRIZER DOES NOT WARRANT THAT THE ADRIZER PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT ADRIZER IS NOT LIABLE FOR ANY ACTIONS TAKEN BY THIRD PARTIES RELATED TO OR ARISING FROM CLIENT’S USE OF THE ADRIZER PLATFORM OR SERVICES.
7.1. By AdRizer. AdRizer shall defend Client and its officers, directors, employees, and agents (each, a Client “Indemnified Party”) against any third party claim, allegation or legal action (a “Claim”) arising from (i) an allegation that the AdRizer Platform, when used by Client in accordance with the terms of this Agreement, infringes any intellectual property right of a third party (the “IP Infringement Obligation”), and (ii) a breach of AdRizer's representations and warranties set forth in Section 6. AdRizer’s IP Infringement Obligation will not apply to claims to the extent arising from (i) Client’s use of the AdRizer Platform in violation of this Agreement, (ii) modification of the AdRizer Platform by any party other than AdRizer without AdRizer’s express consent, or (iii) the combination, operation, or use of the AdRizer Platform with other software, applications, code, product(s), data or services where the AdRizer Platform would not by itself be infringing (collectively, the “Indemnity Exceptions”).
7.2. By Client. Client shall defend AdRizer and its officers, directors, employees, and agents (each, an AdRizer “Indemnified Party”) against any Claim arising from: (i) any of the Indemnity Exceptions, (ii) any Client Properties, Client Content or Ad Unit, (ii) any claims by Users arising from or related to the AdRizer Platform or provision of the Services, or (iii) any breach of Section 2.3 or Client's representations and warranties set forth in Section 6.
7.3. In each case, the indemnifying party shall indemnify the Indemnified Parties against any costs and expenses, including reasonable attorneys’ fees and expenses, and damages actually awarded or paid in connection therewith. The foregoing obligations shall be excused to the extent that the Indemnified Party does not: (i) promptly notify the indemnifying party of the Claim (but only to the extent that the indemnifying party is prejudiced thereby, (ii) tender to the indemnifying party the sole and exclusive authority to defend and/or settle any such Claim; and (iii) reasonably cooperate with the indemnifying party in connection with such Claim. This section states the indemnifying party’s entire obligation and Indemnified Party’s sole remedy in connection with any claim regarding the intellectual property rights of any third party.
7.4. IP Claims. If the AdRizer Platform becomes, or in AdRizer’s reasonable opinion is likely to become, the subject of an intellectual property infringement claim, then AdRizer may notify Client and, at AdRizer’s sole option and expense, either: (i) procure the right to continue providing the AdRizer Platform as contemplated by this Agreement, (ii) modify the AdRizer Platform to render it non-infringing (provided that such modification does not materially adversely affect the features or functionality of the AdRizer Platform), or (iii) replace the AdRizer Platform with a functionally equivalent, non infringing service. If none of the foregoing options is commercially practicable, then each party will have the right to terminate this Agreement without liability to the other.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY SHALL ADRIZER BE LIABLE TO CLIENT (I) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF ADRIZER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES(II) IN EXCESS OF THE FEES PAID OR PAYABLE BY CLIENT TO ADRIZER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. CLIENT ACKNOLEDGES AND AGREES THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS BETWEEN THE PARTIES, AND THAT ADRIZER HAS RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT. Without limiting the foregoing, Client acknowledges and agrees that (i) Client is solely responsible for the Client Properties and Client Content, including its use in Ad Units and on Ad Platforms, and AdRizer shall have no liability therefor, and (ii) AdRizer has the right to refuse any Client Property or Client Content, and shall have no liability for any such refusal, (iii) all Ad Units are subject to review and approval by the applicable Ad Platform(s), and (iv) AdRizer shall not be liable for any rejection or withdrawal by/from any Ad Platform, whether based on the underlying Client Property, Client Content or Ad Unit.
This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of each party. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Nothing in this Agreement shall be construed to create a relationship of agency, employment, franchise, joint venture, or partnership. Except as provided herein, neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained shall give rise or is intended to give rise to any rights of any kind to any third parties. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, consistent with the intent of the parties as of the Effective Date. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to its rules of conflict of laws. Each of the parties hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the state and federal courts located in New York, New York for any litigation among the parties hereto arising out of or relating to the Agreement. All notices under or related to this Agreement will be in writing and will reference the Agreement. Notices will be deemed given when: (i) delivered personally, (ii) sent by confirmed electronic mail, (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All notices to Client will be sent to the addresses set forth in the Service Order and all notices to AdRizer will be sent to AdRizer LLC, 1570 Boulevard of the Arts, Suite 200, Sarasota, Florida 34236, Attn: General Counsel, as such addresses may be updated or new addresses designated pursuant to this Section from time to time. Neither party may assign this Agreement, or sublicense any of the rights granted therein, in whole or in part, without the prior written consent of the non-assigning party, which consent will not be unreasonably withheld by the non-assigning party, except that either party may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with such party or that acquires all or substantially all of the assets and business to which this Agreement relates of the assigning party by merger or purchase. Any attempt by either party to assign or transfer any of the rights, duties or obligations of the Agreement in violation of the foregoing shall be void. In the event of a conflict or inconsistency between these Terms & Conditions and the express terms of a Service Order, the terms of the Service Order shall govern with respect to such terms, solely with respect to the Services provided pursuant to the applicable Service Order. This Agreement, including these Terms & Conditions, together with all Service Orders, constitutes the entire agreement between the parties concerning the subject matter hereof. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations. Neither party is liable for failure or delay in performing its obligations because of causes beyond its reasonable control, including acts of God, terrorism, war, riots, fire, earthquake, flood or unanticipated degradation, failure of third party networks or communications infrastructure, or other similar events beyond the reasonable control of a party. Without limiting the generality of the foregoing, and notwithstanding anything to the contrary in this Agreement, AdRizer does not guarantee the AdRizer Platform will be operable at all times or during any down time caused by outages to any public internet backbones, networks or servers, any failures of equipment, systems or local access services, or for previously scheduled maintenance. Upon termination of this Agreement for any reason, all rights granted hereunder and all obligations of each party shall immediately terminate. Notwithstanding the foregoing, those provisions of this of this Agreement that, by their nature, would be intended to survive the expiration or termination, shall survive.
