Inventory Supplier Terms and Conditions

TERMS AND CONDITIONS

Last updated: March 8, 2017.

These Terms and Conditions governs Company’s supplying of Inventory to TD. By executing the Inventory Supplier Terms, Company agrees to the terms of these Terms and Conditions.

1. CERTAIN DEFINITIONS.

1.1 “Ad Partners” are the third parties who purchase digital inventory through the TD platform for the purpose of displaying their digital ads (the “Ads”).

1.2 “Service” means the impression auction service provided by Company that enables buyers (e.g., TD’s Ad Partners) to purchase inventory (e.g., advertising space on third party websites, apps and other online properties (the “Inventory”)) for the purpose of displaying advertisements on behalf of Ad Partners, which may include means such as RTB and/or private market place, and may also include inventory packaged based upon data sets. For purposes of clarification, the Service shall include tracking technology utilized by Company to provide the inventory and related data from publishers and visitors on publisher’s websites.

2. SERVICES.

2.1 Licenses. (a) Company grants to TD a non-exclusive, non-transferable, non-sublicensable right to use the Service as described in this Agreement. (b) TD grants to Company a limited, revocable, sublicensable (solely described in this Section 2.1), worldwide license to (i) for non-Native Ads (as defined below), copy, encode, and publish and display in real time to the end user (i.e., not locally stored to be displayed to the end user at a later time) the Ads in whole, but not in part, without modification, and (ii) for Native Ads to copy, store, modify solely as set forth in Section 2.4, and to display all elements of the Ad together, in each case solely for Inventory purchased for such Ad by or on behalf of the Ad Partner. This Agreement applies to TD’s use of the Service for itself and on behalf of any TD Ad Partners. The rights grant set forth in clause (b) shall be sublicensed by Company to the extent necessary to the Inventory supplier (i.e., publisher or media company).

2.2 Reporting. Company shall comply with the reporting requirements set forth on Exhibit A. TD will have access to Company’s online reporting interface, and if Company does not have an online reporting interface, Company will send a daily email or otherwise make available a daily report.

2.3 Technical Specs. Company’s web inventory and related information and signals will meet the IAB's Ad Inventory Specifications (described at http://www.iab.com/guidelines/?category=ad-unit-gu... as of the date of this Agreement); provided, that for native inventory, Company’s web inventory will meet the TD-developed protocol based on the IAB's OpenRTB API Specification, or as otherwise updated from time to time. For any Inventory for which the IAB has not published specifications, either TD shall provide those specifications or the parties will work in good faith.

2.4 Native Ads. For any native Inventory (e.g., Inventory where the ads are harmonious with the surrounding content “Native Ads”), this Section 2.4 shall apply. To the extent the Inventory supplier will require the elements of the Ad to be sent in advance to be customized for the “look and feel” of the surrounding content, prior to displaying any Native Ad, upon TD’s request, Company will provide a mockup of each modified Ad to TD or at TD’s direction a third party (e.g., the advertiser or its agency), so that TD can obtain approval of the mockup from the appropriate Ad Partner. In addition, Company represents and warrants that it will not and shall not permit the Inventory supplier to (a) format or display Native Ads in a manner that is potentially misleading, including as to whether a Native Ad is advertising content as opposed to editorial or other content, (b) run any Native Ad prior to receiving approval through TD if TD so requests, or (c) remove or diminish the prominence of any disclaimer or Ad Choices icon that is included in the Ad creative by TD or the Ad Partner.

2.5 Limits. As between TD and Company, (a) Company owns all right, title and interest in the Service, including future developments and enhancements, and (b) TD owns all right, title and interest in its technologies, the Ad and all elements of the Ad. (Ownership of data is covered in Section 3 below.) Aside from the license granted immediately above, neither party grants the other any other license, express or implied, and each party reserves all rights not expressly granted hereunder.

3. DATA.

3.1 Ownership. As between TD and Company and except for the licenses explicitly granted in this Agreement, (a) TD holds all right, title and interest in all data TD imports into the Service or otherwise sends to Company in response to a bid request or otherwise (“TD Data”), and (b) Company holds all right, title and interest in any data already residing in the Service, including its publisher data (“Company Data”), aside from data generated by the Service provided under this Agreement (“Service Data”).

3.2 Usage. As to TD Data, Company may use such data solely to provide the Service to TD under this Agreement. As to Company Data, TD may use such data solely related to its use of the Service. As to Service Data, each party may use the data generated by TD’s use of the Service as follows. TD may use such data for any business purpose provided that it does not disclose data that describes or reflects the performance of the Service to third parties except service providers who are under confidentiality restrictions. Company may use such data to provide the Service to TD. Company acknowledges that Ad Partners may have access to information about sellers of the inventory. Company may have access to detailed information about Ad Partners, including but not limited to their bidding activity (which is confidential to the Ad Partner), and in such cases Company will only permit Company employees who are directly involved in providing the Service to access such information, will only use this information for the purpose of providing the Service and will treat such information as TD Confidential Information.

4. USER PRIVACY. Each party’s standard agreement with its partners (e.g., publishers and other supply partners of Company; advertisers and other demand partners of TD) will require such partners to publish and comply with a legally sufficient privacy policy, as well as providing (among other things) sufficient notice, enhanced notice, and opt-out, and otherwise comply with the requirements of the DAA Self-Governing Principles found at aboutads.info, for any publishers located in (or with end users that are or may be located in) the European Union, the EDAA Self-Regulatory Framework found at http://www.youronlinechoices.com/goodpractice, and for any publishers or media companies outside of the US or EU (or with end users that are or may be located outside of the US or EU), any other local law requirements and self-regulatory guidelines applicable to it or the use of the Inventory (together, the “Self-Regulatory Requirements”). Additionally, all collection, use, and disclosure of all user information provided by Company (including as provided by its inventory partners) shall be in compliance with all applicable laws and privacy policies, including but not limited to the Video Privacy Protection Act.

5. COMPLIANCE.

5.1 Both parties will comply with all laws, rules and regulations and the Self-Regulatory Requirements, applicable to activities related to this Agreement (including but not limited to its own collection of data and tracking of web users), and the parties shall reasonably cooperate with each other to ensure compliance. Company will comply with any inventory standards provided by TD (“Inventory Standards”) listed on Exhibit B, which may be updated from time to time by TD upon notice to Company, and any Ad Partner standards provided to Company in writing. Company shall (x) not provide any inventory that is subject to the Children’s Online Privacy Protection Act, and (y) without limiting Company’s obligations pursuant to Exhibit B, take active steps to combat fraudulent inventory from its suppliers. Company will ensure that Company’s technology and services do not infringe any third party rights including but not limited to intellectual property rights. In addition, the Company’s technology, as well as the inventory and associated websites, apps and other digital platforms will not (a) include, promote or depict obscene or pornographic material, illegal products or services, gambling, discrimination on the basis of race, sex, creed, national origin, religious affiliation, physical disability, sexual orientation or language, deceptive or libelous content (b) violate any applicable law, rule, regulation, or governmental guidelines (including but not limited to the FTC guidelines on native advertising), or infringe any third party rights including but not limited to intellectual property rights, or (c) distribute or contain viruses or other malware. Company will not make any inventory available through the Service if the end users of such inventory cannot lawfully be tracked using a persistent identifier for purposes of receiving advertising targeted on the basis of such end user’s online behavior. Company shall include, and shall ensure its suppliers include, any legally required disclosures applicable to any native advertising (e.g., FTC endorsement disclosures). In addition, to the extent that a native ad contains such a disclosure, Company shall not remove or obscure such disclosure. Company further agrees that it shall not modify any advertisement in any manner, except in accordance with Section 2.4. TD will not be obligated to pay for any inventory that does not comply with the applicable Inventory Standards or this Agreement.

5.2 Company shall not send inventory to TD that is different from the Location (defined below) or that is “referrer” inventory, in other words, inventory that is being resold from other ad exchanges or supply side platforms. If Company sends TD referrer inventory or redirects an impression from the website, publisher or URL, or geolocation (“Location”) stated in the impression auction, and the impression is then served on a different Location than what was represented in the auction, all payments associated with that Location will be refunded to TD within 30 days after TD notifies Company.

6. DISCLAIMER. EXCEPT AS SET EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, REPRESENTATIONS, OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.

7. LIMITATIONS ON LIABILITY. EXCEPT FOR VIOLATIONS OF SECTIONS 8 OR 13, IN NO EVENT WILL EITHER PARTY’S LIABILITY EXCEED THE FOLLOWING. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE FORSEEABLE OR A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN ADDITION, NEITHER PARTY’S MAXIMUM AGGREGATE LIABILITY SHALL EXCEED (A) FOR ALL NON-INDEMNITY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT: FIVE TIMES THE TOTAL AMOUNT PAID BY TD TO COMPANY DURING THE SIX MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE, AND (B) FOR INDEMNITY OBLIGATIONS: $2,000,000.

8. MUTUAL INDEMNIFICATION. TD shall indemnify, defend and hold harmless Company and its directors, officers, employees and agents, its and their respective successors, heirs and assigns (the “Company Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the Company Parties in connection with any third-party claim arising out of or relating to any allegation that would constitute TD’s breach of Sections 4 or 5. Company shall indemnify, defend and hold harmless TD and its directors, officers, employees and agents (and successors, heirs and assigns) and customers (the “TD Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) incurred by the TD Parties in connection with any third-party claim (a) that the Service (or any portion thereof) or TD’s use (or its Ad Partner’s use) thereof infringes any patent or other third party intellectual property right, (b) arising out of or relating to any allegation that would constitute Company’s breach of Sections 4 or 5, or (c) arising out of or relating to any website, app or other material which Company provides through the Service (e.g., inventory, landing pages, app and other materials of Company’s clients), including but not limited to any claim that the inventory on which an ad appeared was not the inventory identified in the Service. The indemnified party will provide the indemnitor with prompt notice of any claim (provided that the failure to promptly notify shall only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure) and at the indemnitor’s expense, provide assistance reasonably necessary to defend such claim. The indemnitor will not enter into a settlement that would result in liability to the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed.

9. CONFIDENTIALITY. “Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential. The terms of this Agreement are the Confidential Information of each party (not to be disclosed by a party without the written consent of the other). The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling its obligations under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request of the other party. “Confidential Information” does not include information that (a) is or becomes part of the public domain through no fault of the receiving party; (b) was already in possession of the receiving party; or (c) was independently developed by the receiving party without violation of this Section. The receiving party may disclose Confidential Information if required to do so by law, if the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure.

10. MISCELLANEOUS.

10.1 This is the entire agreement of the parties relating to this subject and it supersedes all other commitments, negotiations and understandings. This Agreement cannot be amended except by a writing signed by both parties. This Agreement cannot be assigned without written consent of the non-assigning party, except that either party may assign this Agreement (a) to an acquirer of substantially all of that party’s assets, stock or business by sale, merger or otherwise or (b) to a corporate affiliate. If any provision of this Agreement is unenforceable, that provision shall be re-interpreted to be as close to the parties’ intent as legally possible and the validity of the remaining provisions will not be affected. The parties are independent contractors and there are no third party beneficiaries. Provisions that by their terms are expected to survive will survive expiration or termination.

10.2 A party’s failure or delay to exercise any right will not operate as a waiver, nor will any single or partial exercise of any such right preclude any other exercise or the exercise of any other right, power or remedy.

10.3 All notices, demands and other communications provided for or permitted under this Agreement will be made in writing by personal delivery or by email, if to TD to the contact address set forth on its website, and if to Company, to the contact information set forth on page 1 of this Agreement.

10.4 This Agreement is governed by the California state law, excluding conflicts of laws principles.

10.5 Any action arising under or related to this Agreement will be resolved in the state or Federal courts (and the parties hereby consent to personal jurisdiction) in the County of Los Angeles, CA. The prevailing party is entitled to recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorneys’ fees.


EXHIBIT B

Inventory Standards

Company will not serve TD Advertiser’s Ads (or allow Ads to be placed) on a Prohibited Site.

“Prohibited Site” means any site or digital property containing ad inventory that contains, involves, facilitates, advocates, promotes or otherwise meets one or more of the following: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability; (b) libel, defamation, obscenity, nudity, pornography, adult content, sexually explicit or abusive activities; (c) illegal gambling or illegal substances; (d) sedition or illegal activities; (e) MP3, MPEG and/or copyrighted materials for download, sale or otherwise, in any case without the permission of the copyright owner or otherwise in violation of copyright law, or that induces infringement or misappropriation of a copyright, trademark, trade secret or patent of another party; (f) a conflict or violation of any law, regulation, or court order, or any intellectual property or other rights of any person or entity (for purpose of clarification, “intellectual property” includes public performance rights if the site or digital property includes music (or may include music) or includes audio or video ad inventory (i.e., such site or digital property shall be required to have the requisite public performance licenses)); or (g) user generated content, sites aggregating/distributing user generated content, personal homepages or “free” web pages, unless previously agreed to in writing, which writing may be as part of the Agreement.

Additionally, Company shall not provide:

  • Inventory content:
    • that depicts, contains, or provides access to violent content or threats of physical harm to a particular individual or group, hate speech
    • from sites intended for the sole purpose of garnering ad impressions, without providing any material content or service to users
    • from sites or applications does not provide notice or does not obtain necessary user consent for data collection or for material functionality of a site or software through which ads are delivered, or through which data are collected for subsequent use in advertising
    • that obscures, replaces, modifies, or otherwise interferes with another party’s ads or ad inventory
    • that causes interference with user navigation (e.g. preventing a user from leaving a page, by popping dialogs, pop-ups, new windows, etc.)
    • simulates or artificially initiates clicks or impressions, including by automatically refreshing tags or pages