Terms and Conditions


TERMS AND CONDITIONS

Last updated: July 11, 2016.

These Terms and Conditions governs Company’s use of TD’s Services. By executing an MSA, Company agrees to the terms of these Terms and Conditions.

1. CERTAIN DEFINITIONS.

1.1 “Agreement” means the Master Services Agreement executed by TD and Company, including each Order Form (if any) executed by the parties and these Terms and Conditions (including all applicable Schedules).

1.2 “Audience Tools” means the functionality provided in the Platform that enables advertising campaigns to be targeted to particular types of users (e.g., avid golfers). Audience Tools may utilize audience data provided by Company (i.e., first party data), third parties (e.g., BlueKai) or TD. For clarity, any audience data provided by Company shall constitute Company Data.

1.3 “Business and Campaign Data” means the data generated by Company’s use of the Services (defined below) and the transactions under this Agreement. Business and Campaign Data does not include Company Data (defined below) or TD Data (defined below).

1.4 “Company” means the company listed on the first page of the MSA executed between TD and Company.

1.5 “Company Data” means the data Company imports into the Platform (defined below), including but not limited to information about advertising campaigns and Company’s account. As described further in Section 5.1, Company is the sole owner of Company Data and TD may use the Company Data solely to provide Services to Company under this Agreement.

1.6 “Fees” means the fees shown in this Agreement and the fees shown in the Platform user interface for any additional optional features and services that Company uses.

1.7 “Inventory Partners” means the third parties who make inventory available for purchase through the Platform.

1.8 “Media Spend” means the cost of all ad inventory purchased and/or data licensed by or on behalf of Company through the Platform.

1.9 “Platform” means the TD hosted platform.

1.10 “Services” means the services and functionality provided by the Platform, any campaign management services, tags and pixels, and any other services TD provides to Company.

1.11 “TD Data” means all data residing in the Platform that does not constitute Company Data, Business and Campaign Data or third party data underlying the Audience Tools.

1.12 “Term” shall have the meaning set forth on the MSA executed by TD and Company.

1.13 “Total Cost” means Media Spend plus any applicable Fees.

2. SERVICES.

2.1 Self-Serve Usage. Subject to this Agreement and as long as Company is paid up, TD grants Company a non-exclusive, non-transferable right to access and use the Platform (including Audience Tools and other functionality made available by the Platform) on a self-serve basis, including for Company to purchase advertising for its or its clients’ advertising campaigns. Company will obtain and maintain throughout the Term, (and hereby grants to TD to the extent necessary), all rights and permissions needed to buy inventory on Company’s behalf (and any third party on whose behalf Company is acting), perform tracking and analytics, and to store and serve ads. During the Term TD may offer additional services beyond those described herein, including third party services. Fees for such services will be shown in the Platform user interface or otherwise agreed to by the parties. In addition, to the extent that Company requests TD’s help to use the Services, whether such requests are verbal or in writing, Company consents to the actions that TD performs on its behalf. Company retains sole responsibility for such assisted use of the Services.

2.2 Managed Services. In addition to self-serve usage, Company may engage TD to provide Managed Services, including for TD to purchase advertising on behalf of Company for Company’s or Company’s clients’ advertising campaigns. The details of Managed Services will be defined in insertion orders (“IOs”). IOs are only binding if they have been signed by both parties. Unless an executed IO expressly states otherwise, each IO will be subject to the terms of these Terms and Conditions.

2.3 Additional Services.

2.3.1 Direct Tags. In the event Company desires to utilize TD tags in order to facilitate a campaign agreed upon directly between Company and a publisher, TD shall provide the applicable tag in accordance with the terms of this Agreement, and Company shall include in its agreement with such publisher the inclusion of the tag on publisher’s properties. TD shall provide reasonable assistance to provide technical information such publisher may request, but TD shall not be required to enter into a separate agreement with such publisher.

2.3.2 Direct Seats. In the event Company holds its own seat on an exchange and desires for TD to provide payment services to such exchange, the parties shall work together to set up such seat and payment mechanism, and TD shall charge Company the fee set forth on the Order Form.

2.4 Reporting. Company will have access to TD’s online reporting interface. All reports (and/or related data) from the interface are solely for the internal use of Company and Company’s clients; provided, that each such client agrees that such reporting may be used for its own internal purposes. Reports and related data may not be shared with any third party other than to provide analytics services to Company; provided, that such third party is contractually prohibited to utilize the reports, data or results therefrom for any purpose other than to provide the analytics services for Company and must delete all copies of all data immediately thereafter. Company shall be fully liable for the breach of the obligations of this section by any Company client or third party.

2.5 Campaign Analytics. TD offers analytics such as click and conversion tracking (“Campaign Analytics”). This section only applies if Company implements the analytics code available in the Platform (“Campaign Analytics Code”). Company may not edit or delete the Campaign Analytics Code without TD’s prior written consent. Upon termination of this Agreement, Company must promptly remove all Campaign Analytics Code. If Company implements the Campaign Analytics Code, Company must inform its users that (a) it uses TD to monitor interaction with its ads and website(s), TD may gather and use information from cookies and/or other automated technologies, but that TD does not collect information such as the user’s name or email address, and (b) if the user chooses, the user can opt out from TD’s collection of such information, by clicking on the following link: http://www.adsrvr.org. To clarify, Company does not have to use this specific language as long as it communicates the same information.

2.6 Audience Tools. Fees for use of Audience Tools (e.g., fees for targeting based on third party audience data) will be as shown in the Platform or as agreed in advance in writing. Company may use the Audience Tools solely for the purpose of managing campaigns through the Platform and shall not attempt to extract or recreate the data underlying the Audience Tools or assemble similar data or audience segments itself or from any different third party. In the event Company desires to utilize TD’s non-RTB tracking tags for direct deals with publishers, Company shall be subject to the applicable fee set forth on the Order Form, and Company shall be responsible for any contractual relationship with such publisher(s); provided, that TD shall provide reasonable technical assistance (e.g., to complete any questionnaires requested by such publisher(s)).

2.7 Prohibitions. Company will use the Services only for its own use or for an advertiser or direct agent with which Company has a direct relationship. Company will not (a) attempt to circumvent any Platform security measure, (b) share its Platform login or otherwise grant account access with any third party without the express permission of TD, (c) reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble any TD-provided tag, the Platform or any portion thereof, (d) use or authorize the use of the Platform for any purpose not permitted under this Agreement, (e) copy, sell, transfer, lease, lend, syndicate, or sub-syndicate the Platform, or use the Platform for co-branding, timesharing, arbitrage (e.g., reselling), service bureau or other unauthorized purposes, (f) utilize rotating ad tags or otherwise violate the Ad Standards, (g) import into the Platform any personally identifiable information including by using TD’s ad tags or pixels, or (h) distribute viruses or other malware (through the ads or any other mechanism). TD may immediately suspend Company’s access or terminate this Agreement upon any breach by Company of this Section 2.7. In the event of a breach of this Section 2.7 that results in a termination or suspension of TD’s ability to conduct business with a third party partner (e.g., an inventory provider), without limiting any rights or remedies available to TD, and notwithstanding any other provision in this Agreement to the contrary, Company shall be liable to TD for all lost profits resulting from suspension, which shall be added to Company’s invoice. Inasmuch as the services TD provides are uniquely developed to fit the Company’s particular needs, attempts to transfer any portion of the work to any third party could cause significant damage. Under no circumstances may Company use the Platform for gathering competitive intelligence. Company may not create targeting profiles or segments on the basis of the publisher sites that a user has visited, the content on the publisher’s page or site, or the general interest area(s) covered by the publisher (e.g., Company may not create an “ESPN Audience” segment based on any information obtained during a prior campaign on ESPN properties).

2.8 Affiliate Adopting Agreements. TD may enter into affiliate adopting agreements (“Adopting Agreements”) with affiliates of Company that Company controls, is controlled by or is under common control with (“Affiliate”). Such Adopting Agreements will be in the form provided by TD upon request. Company will remain responsible to TD for the actions and obligations of any such Affiliate.

2.9 Beta Features. During the Term, TD may offer to Company the right to use certain experimental features that are made available to Company by TD on a test basis (“Beta Features”). All Beta Features are provided on an “as is” basis, without any representations, warranties, covenants or obligations of any kind. Any use by Company of Beta Features is solely at Company’s own risk. TD may modify or remove any Beta Features at any time.

3. PAYMENT AND TAXES.

3.1 Each month, TD will provide Company its invoice for all amounts owed for the previous calendar month. For each invoice that Company pays in full within 30 days of the invoice date, TD will apply a two percent discount to the next month’s Platform Share (i.e., the next month still open). Unless the parties agree otherwise in writing, TD will invoice and Company will pay in US dollars. For any invoice that is not paid in full within 45 days of the invoice date, TD reserves the right to (a) charge interest of 2% per month (or the maximum allowed by law, whichever is lower), and (b) suspend Services or terminate this Agreement if Company does not pay an overdue invoice in full within 5 days of receiving a default notice. If Company chooses to pay its invoice via credit card, a 3% convenience fee shall be added to such amounts. All payments due under this Agreement shall be made without setoff or deduction, including for or on account of any present or future tax, assessment, or other governmental charge (“Taxes”) imposed upon such payment by any state, country, political subdivision or taxing authority thereof or therein. If Company shall at any time be required by law to withhold any Taxes from any payment to TD, Company will pay as additional amounts to TD such amounts as may be necessary so that every net payment to TD after withholding for or on account of any Taxes will not be less than the amount required under this Agreement then due and payable. Company shall notify TD of any disputes or discrepancies in writing within 30 days of receipt of invoice, after such time the invoice shall be final and all disputes or discrepancies waived.

3.2 Additional Fees. For any creative submitted to the AppNexus exchange, AppNexus charges a $1.00 creative approval fee, and TD shall have the right to pass on all creative approval fees to Company. Any reference in this Agreement to payments shall be deemed to include payment of the additional amounts payable pursuant to the provisions of this Section 3 or elsewhere in this Agreement (e.g., Section 6).

4. COUNTING. TD will have sole responsibility for calculating and reporting metrics on media or data bought and sold through the Platform and such metrics shall be used for calculating payments. TD will make such metrics available to Company through the Platform. All Company-trafficked ads will be counted as impressions. In the event of a discrepancy between Company’s records and TD’s metrics, Company may inspect the log files up to twice per calendar year, provided that any inspection shall be at reasonable times and on reasonable notice, and Company may not inspect the log files for the same time period more than once. Any data (except for Company Data) made available to Company during an inspection is TD’s Confidential Information and Company will not disclose such data to any third party or use such data for any purpose other than verifying TD’s accounting. Additionally, TD will make reasonable technological and auditing efforts to ensure TD end of the month figures, platform wide, are within 10% of the end of the month totals of supply-side counts. In the event that there is a discrepancy of more than 10% between the reported cost of inventory or data, based on a calendar month, and the Company and TD are unable to resolve the discrepancy, TD is responsible for the amount of the total supply discrepancy above 10%. Company will raise any discrepancies within 30 days of the date of the applicable invoice. TD may update numbers if there is delay in reporting affecting month-end invoicing.

5. OWNERSHIP AND DATA USAGE. This Section describes the parties’ rights and obligations as to Company Data, TD Data and Business and Campaign Data. Aside from any first party targeting data provided by Company, which constitutes Company Data, this Section does not cover the parties’ rights and obligations as to any data underlying the Audience Tools (see Section 2.6 above).

5.1 As between TD and Company, (a) Company owns all right, title and interest in all Company Data and the ads Company provides, and (b) TD owns all right, title and interest in the Services, including future developments and enhancements, and the TD Data. Aside from the rights granted herein, neither party grants the other any other right, express or implied, and each party reserves all rights not expressly granted hereunder.

5.2 As to Company Data, TD may use such data solely to provide the Services available under this Agreement. As to TD Data, Company may use such data solely in connection with its use of the Platform and other Services. As to Business and Campaign Data, each party may use the data generated by Company’s use of the Services as follows. Company may use such data for any internal business purpose provided that (a) it complies with its privacy policy, (b) it complies with the terms of this Agreement including but not limited to Section 2.7, and (c) it does not disclose data that describes or reflects the performance of the Platform (or any other Services), or any publisher or inventory partner, to third parties except service providers who are under confidentiality restrictions. TD may use such data (a) to provide the Services available under this Agreement, (b) internally for any other business purpose (e.g., fraud detection or financial reporting), and (c) externally if such data is aggregated with other data such that third parties cannot attribute the data to Company (e.g., publishing industry trends on average CPMs). Company acknowledges that Inventory Partners may have access to information about purchasers of their inventory.

5.3 Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by Company relating to the Platform, the Services or any other services or products of TD, may be voluntarily provided and Company agrees that each may be used by TD without compensation, accounting or attribution to Company, and Company grants a perpetual, irrevocable, fully paid up right and license to any of the foregoing.

6. USER PRIVACY. Each party will abide by and each party’s standard agreement with its partners (e.g., advertisers and other demand partners of Company, and Inventory Partners of TD) will require such partners to follow the Notice and Choice Provisions of the NAI Principles found at www.networkadvertising.org and to publish and comply with a legally sufficient privacy policy that fulfills the requirements of the DAA Self-Governing Principles found at aboutads.info. If Company places its own ads through the Platform, drops cookies or otherwise collects information from individuals or devices, Company will also fulfill the requirements of this Section. Company shall ensure that its collection, storage, disclosure and use of all user data, whether conducted through the Platform or otherwise, is strictly in compliance with all applicable laws, including any local law requirements related to use of IP addresses and behavioral information, COPPA and the Video Privacy Protection Act (“VPPA”). In addition, TD reserves the right to place the AdChoice icon (or a similar icon) on the ads provided by Company via the Platform that do not already include such icon and pass through such fees, not to exceed $0.01 CPM. Company shall not (i) import any personally identifiable information into the Platform, including by using TD’s ad tags or pixels to gather such information, and (ii) combine any TD Data or Business and Campaign Data with any personally identifiable information.

7. AD TAGS. If Company uses the TD ad server, Company is responsible for inputting ad tags so that they are functional. Each ad tag may relate to one advertiser only (but can be related to multiple ads/creative for that advertiser).

8. COMPLIANCE.

8.1 Both parties will comply with all applicable laws, rules, regulations, and government guidance (TD in its provision of the Platform and Services in the form provided, and Company as to the ads it provides and its use of the Platform and the Services), which shall include, for purposes of clarification and not of limitation, FTC guidance on sponsorships and native advertising. Company will comply with TD’s Ad Standards located in the TD Wiki (or successor URL) and security requirements and with any applicable Inventory Partner ad standards provided to Company (all of the foregoing, “Ad Standards”). Company will not use the Platform in connection with any ads (or the targeting thereof) or other digital content that are obscene or pornographic, or that depict illegal activity. In addition, Company will not use the Platform in connection with any ads that violate any law, regulation or third party right (including intellectual property and privacy rights) or that are deceptive or defamatory. Without limiting Company’s obligations under the Children’s Online Privacy Protection Act (“COPPA”), Company shall not use any persistent identifier to target users of any inventory (e.g., websites, apps or other online properties) directed or targeted at children under age 13 or that Company knows or should know are used by a substantial or disproportionately high ratio of children under age 13. TD may immediately suspend any campaign, Company’s use of the Platform and Services or terminate this Agreement if Company violates this Section 8.1.

8.2 TD may reject any ads that do not comply with the applicable Ad Standards. TD may immediately suspend any Company campaigns if TD reasonably determines that Company or any ad provided by Company has failed to comply with this Agreement or the applicable Ad Standards, the guidelines or requirements provided by an ad exchange or other Inventory Partners or has used the Platform in a manner that could damage the Platform or reflect unfavorably upon TD, its affiliates, or Inventory Partners. TD will promptly notify Company in writing upon any such suspension. If Company fails to cure its non-compliance within 10 days of notice or Company repeatedly fails to comply, TD may immediately terminate this Agreement upon written notice to Company.

8.3 Company is solely responsible for all activity and payments owed under its account(s) and will keep its account passwords and login information confidential.

8.4 The Platform (or portions thereof) may be subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside the U.S. Company shall abide by all applicable export control laws, rules and regulations applicable to the Platform. Company agree that Company will not export, re-export, or transfer the Platform, in whole or in part, to any country, person, or entity subject to U.S. export restrictions.

9. TERMINATION. A party may terminate this Agreement (a) for any reason or no reason on 60 days written notice to the other, or (b) for material breach, if the other party has failed to cure such breach within 10 days of receiving notice. To terminate this Agreement, the party must notify the other via email or in writing. Any minimum fees owed for the remaining 60 days will still apply.

10. DISCLAIMER. EXCEPT AS 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. TD MAKES NO REPRESENTATIONS REGARDING THE BENEFITS TO COMPANY FROM THE PLATFORM, OR THAT THE PLATFORM OR ANY INFORMATION PROVIDED BY INVENTORY PARTNERS AND/OR DATA PROVIDERS WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION.

11. LIMITATIONS ON LIABILITY. EXCEPT FOR VIOLATIONS OF SECTIONS 2.7 AND 13, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE OR A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND (B) IN NO EVENT WILL EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO TD IN FEES DURING THE SIX MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE. FURTHERMORE, COMPANY ACKNOWLEDGES THAT TD AND ITS AFFILIATES ARE NOT LIABLE FOR TRANSACTIONS EXECUTED BY THE PLATFORM AS A RESULT OF ERRORS MADE IN ENTERING INFORMATION INTO THE TD PLATFORM BY COMPANY OR ON COMPANY’S BEHALF, INCLUDING INCORRECT PRICING, TARGETING OR BUDGETING INFORMATION. NOTWITHSTANDING ALL OF THE FOREGOING, NOTHING HEREIN SHALL LIMIT COMPANY’S OBLIGATION TO PAY FOR MEDIA SPEND. TD IS NOT LIABLE FOR ANY OUTAGES OR DOWNTIME OF THE PLATFORM.

12. MUTUAL Indemnification. TD shall indemnify, defend and hold harmless Company and its directors, officers, employees and agents (and successors, heirs and assigns) (the “Company Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) (“Liabilities”) incurred by the Company Parties in connection with any third-party claim that TD’s proprietary technology that provides the Services, in the form provided by TD, infringes any US patent or other third party intellectual property right. Company shall indemnify, defend and hold harmless TD and its directors, officers, employees and agents, its and their respective successors, heirs and assigns (the “TD Parties”) against any Liabilities incurred by the TD Parties in connection with any third-party claim arising out of or relating to (a) Company’s use of the Platform or Service; (b) any advertisement or other material with which Company uses the Platform (including the ads, landing pages and other materials of Company and Company’s clients); (c) the breach of any obligations or restrictions in this Agreement by any advertiser or third party partner of Company. 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.

12.1 TD shall have no obligation for any claim arising from or related to (a) compliance with Company specifications, (b) any combination of the Platform and/or Business and Campaign Data with products or services not supplied by TD, where such infringement would not have occurred but for such combination, (c) adaptation or modification of the Platform or Business and Campaign Data, where such infringement would not have occurred but for such adaptation or modification, (d) Company’s failure to follow instructions provided by TD which would have cured the infringement, provided that following such instructions would not have caused Company substantial additional cost, (e) use of the Platform or Business and Campaign Data other than as described in Sections 2 and 5 above, or (f) Company’s continued use of a version of the Platform other than the most recently released version, where such infringement would not have occurred if such most recently released version had been used. If any of the subsections above apply, Company will indemnify, defend and hold harmless TD and its officers, directors, employees, and agents from and against any Liabilities arising directly or indirectly out of such claims.

12.2 If the Platform or Services are held in a suit or proceeding to infringe any intellectual property rights of a third party and the use of such Platform or Services is enjoined, or TD reasonably believes that it is likely to be found to infringe or likely to be enjoined, then TD may, at its sole cost, expense and option, either (a) procure the right to continue using such Platform or Services, or (b) modify such Platform or Services so that it becomes non-infringing without affecting the basic functionality of such Platform or Services; provided, however, that if (a) and (b) are not practicable, TD may, in its sole discretion, terminate this Agreement with respect to such Platform or Services by giving Company 30 days written notice, upon which termination TD shall refund the portion of such pre-payment that reflects the remaining term. TD’s obligations as stated in Section 12 are Company’s sole remedy and TD’s sole liability arising out of or relating to infringement claims.

13. 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) and data regarding the performance of the TD systems and Services is TD Confidential Information. 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. Company shall keep confidential any third party information, including data regarding TV Inventory provided through the Platform (“Third Party Data”), and use such Third Party Data solely for purposes of planning and administering campaigns, including post-campaign analysis. For clarity, Company may not (i) extract Third Party Data; (ii) disclose, display, copy, transmit, reproduce, or duplicate the Third Party Data for any purposes except as expressly stated in this Section; (iii) make any use whatsoever, whether internally or externally and whether for commercial purposes or otherwise, of any Third Party Data or information derived therefrom except through the Platform as permitted in this Section; (iv) rent, sell, sublicense, transfer, grant any rights in, modify, reverse engineer or create derivative works of (including analytics based on, except as described in this Section) the Third Party Data.

14. Miscellaneous.

14.1 Neither party will make any public statement relating to the Agreement without the prior written approval of the other, except that TD may include Company’s name and logo in its marketing, promotional materials and customer lists.

14.2 TD reserves the right to continually evolve the Platform and its services without notice. In the event TD chooses to discontinue the Platform, TD will provide Company with 30 days prior notice. TD will provide such notice of discontinuation when Company logs into the Platform, on the TD website or by email, and the notice shall be effective immediately.

14.3 This Agreement is the entire agreement of the parties relating to this subject and it supersedes all other commitments, negotiations and understandings. MODIFICATIONS TO THESE TERMS AND CONDITIONS MAY BE MADE BY TD AT ANY TIME. THE MODIFIED TERMS AND CONDITIONS WILL BE EFFECTIVE IMMEDIATELY UPON POSTING ON THIS URL (OR SUBSEQUENT URL) AND COMPANY AGREES TO THE NEW POSTED TERMS AND CONDITIONS BY CONTINUING THE USE OF THE SERVICES. TD WILL USE REASONABLE EFFORTS TO NOFITY COMPANY OF MODIFICATIONS THAT ARE MATERIAL TO COMPANY’S USE OF THE SERVICES, WHICH MODIFICATION MAY BE PROVIDED BY EMAIL OR A NOTIFICATION POSTED TO COMPANY’S ACCOUNT. IF COMPANY DOES NOT AGREE WITH THE MODIFIED TERMS AND CONDITIONS, COMPANY'S ONLY REMEDY IS TO (A) IMMEDIATELY DISCONTINUE USING THE SERVICES, AND (B) TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. 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. Sections 2.7, 3 (until final payment), 5, 6, 8 and 10-14 will survive expiration or termination. Any claims (in court or arbitration) must be brought in the initiating party’s individual capacity and not as a plaintiff or member in any class action or other similar proceeding.

14.4 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.

14.5 Notices must be in writing and are effective when (a) delivered personally or (b) sent by email, if to TD to the contact address set forth on its website, and if to Company, to the contact information Company maintains in Company’s Platform account; provided the sending party can confirm that the email was apparently sent successfully according to its ordinary technical records and does not receive an error notice and the email includes in the subject line “LEGAL NOTICE”. Notwithstanding the foregoing, if the sending party receives an error notice because the receiving party has changed its email address without formally notifying the sending party, the email notice is deemed effective if the sending party is using the last email address provided by the other party for the express purpose of receiving notices. In that case, the sending party will attempt to reach the receiving party by phone. Company is responsible for notifying TD as soon as possible of a change in the contact information for invoicing, and failure to provide the proper information shall not delay Company’s obligations to timely pay invoices. Changes to contact information should be submitted to: ar@thetradedesk.com.

14.6 This Agreement is governed by the laws of the State of California, excluding conflicts of laws principles.

14.7 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.

14.8 Multiple signature pages, signatures delivered via pdf copy or fax, and electronic signatures will all constitute originals and together constitute the same instrument.

14.9 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 degradation or failure of third party networks or communications infrastructure.

SCHEDULE 1

Trading Academy Terms and Conditions

OPTIONAL - Shall only apply in the event Company elects to include Trading Academy Seats

Except as provided in this Schedule 1, the terms of the Agreement shall apply to the Company’s use of the eLearning Services (as defined below).

1. THE TRADING ACADEMY. “The Trading Academy” is an educational program created by TD for the purpose of training media buyers in the digital marketing industry. The Trading Academy offers eLearning video curriculum, a midterm exam, and final exam with a certificate of completion awarded. Curriculum is delivered through TD’s The Trading Academy eLearning Platform (“Academy Platform”). The Trading Academy content, and providing access to such content through the Academy Platform shall be deemed the “eLearning Services.”

2. LICENSE AND TERM.

2.1 Subject to Company’s payment of fees owed to TD, TD grants to Company a right to use the eLearning Services as follows: Company’s allotted number of users a non-exclusive, non-sublicensable and non-transferable right to access the Academy Platform and use the functionality made available by the Academy Platform on a self-serve basis and to view “the Trading Academy.” For purposes of clarification, each user receives s license and an individual login. Logins may not be shared with, or transferred to, any other person.

2.2 As between TD and Company, TD owns all right, title and interest in the eLearning Services, including future developments and enhancements. Aside from the license granted in Section 2.1, TD grants no other license, express or implied, and TD reserves all rights not expressly granted hereunder. Company will not attempt to circumvent any Platform security measure and Company shall not download, copy, distribute, or share any of the eLearning Services or portion thereof and Company shall not challenge any ownership or intellectual property rights of TD in any of the eLearning Services or portion thereof. Company will use the eLearning Services only for its own use and Company shall not use the eLearning Services to create a competing eLearning Service.

2.3 TD will provide Company’s allotted number of users the foregoing license for a period of 1 year (“Platform Access Term”). A Company user’s Platform Access Term is independent of the Platform Access Term for any other Company user. For example, if Company purchases a license for 10 users in January and then purchases a license for 10 additional users in February, the respective Platform Access Term for each group of users will be independent of the other (i.e., each group will still get 1 full year of access). The expected term to complete training is between 30 and 90 days; provided however that a user’s completion or non-completion will not modify such user’s Platform Access Term.

3. FEES AND PAYMENT. The initial order of licenses is set forth on the Order Form. Additional licenses may be added at any time with an additional order form. Pricing for each user is based on the number of users who receive access to the Academy Platform according to the following Fee Table:

Fee Table


Users

Platform Access

Term

Price (per user/ per year)

1-20

1 Year

$1,800

21-50

1 Year

$1,600

51-100

1 Year

$1,400

101+

1 Year

$1,200

Additional orders shall be subject to TD’s then-current fees; provided, that TD shall not modify the fees above for the first year of the Term.

3.1 Payment. Company shall pay the Fee in full in advance prior to receiving access to the eLearning Services. In the event of adding additional Users hereunder, the Fee shall be paid in full in advance prior to receiving additional login credential(s).

For example, if Company requests access for 10 users, then Company would pay TD $18,000 (i.e., $1,800 x 10) prior to such users receiving access to the Academy Platform.

4. DISCLAIMER. TD MAKES NO WARRANTIES, REPRESENTATIONS, OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING ELEARNING SERVICES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OR THE BENEFITS TO COMPANY FROM THE ACADEMY PLATFORM, OR THAT THE ACADEMY PLATFORM WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION.

5. TERMINATION.

5.1 TD may terminate this Academy Addendum for Company’s material breach, if Company has failed to cure such breach within 10 days of receiving notice. In the event of termination for Company’s material breach, Company shall pay TD all amounts owed (if any) within 15 days of the date of termination of this Academy Addendum. In addition, if there are no active users, then either party may, for any or no reason, terminate this Academy Addendum upon written notice; provided however that Company will still be responsible for paying TD all amounts owed (if any).

5.2 If the Agreement expires or is terminated, and there are no active users under this Academy Addendum, then this Academy Addendum will automatically terminate.

5.3 If the Agreement expires or is terminated for convenience, and there are active users under this Academy Addendum, then the Sections of the Agreement corresponding to Payment, Confidentiality and Miscellaneous will survive solely for the purpose of applying to this Academy Addendum until this Academy Addendum is terminated. If the Agreement is terminated for cause by TD, and there are active users under this Academy Addendum, then at TD’s option TD may either (a) terminate this Academy Addendum upon written notice to Company; or (b) allow the Sections of the Agreement that correspond to Payment, Confidentiality and Miscellaneous to survive solely for the purpose of applying to this Academy Addendum until this Academy Addendum terminates.

SCHEDULE 2

APIs Terms and Conditions

OPTIONAL - Shall only apply in the event Company elects to utilize APIs

Except as provided in this Schedule 2, the terms of the Agreement shall apply to Company’s use of APIs.

1. LICENSED USE. Company will:

1.1 use the TD Application Program Interfaces and any client-side software provided by TD (“APIs”) and the data, content and information made available through the APIs (“API Data”) in accordance with the terms of this Schedule 2;

1.2 require any third parties on whose behalf Company acts to use the APIs and the API Data in accordance with the terms of this Schedule 2 and the Agreement; and

1.3 use the most recently released version of the APIs promptly within 12 months following the release of such version.

2. RESTRICTIONS. Company will not:

2.1 interfere with or attempt to interfere in any manner with the proper functioning or performance of the APIs or the servers or networks providing the APIs;

2.2 circumvent, attempt to circumvent or disrupt any technical restrictions;

2.3 sell, lease, share, transfer or sublicense to any third party all or any portion of the APIs or API Data;

2.4 create more than a single API or share its API key or access information with another party without TD’s prior written consent;

2.5 use the APIs in a manner (x) inconsistent with this Schedule 2 or the Order Form, (y) that exceeds the authorizations granted by TD, or (z) that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, privacy rights, publicity rights or moral rights; or

2.6 use the APIs in connection with a product or service that competes with products or services offered by TD.

3. FEES AND MINIMUMS. The following shall only apply to Advanced APIs (and not to the Raw Event Data Feed).

3.1 Advanced API Fees. The setup fee for the API shall be $2,500 (which, for purposes of clarification, shall be in addition to the Initial Setup on page 1 of the Agreement). The Monthly Minimum set forth on page 1 of the Agreement is deleted and shall be $5,000 for so long as this Schedule 2 is in effect.

3.2 AdGroup Minimums:

3.2.1 Each active AdGroup is required to have an actual spend of at least $30 per month. In the event of any AdGroup that spend is less than $30, TD shall gross up to $30 for such AdGroup (the “Gross Up Amount’); provided, that TD shall waive the first $500 each month.

3.2.2 Example: Company creates 50 active AdGroup that each spend $5.00 in June 2014. On June 30, 2014, the Gross Up Amount is $1250 (50 x $25). In addition to the actual spend of $250 (50 x $5), TD shall invoice Company and additional $750 ($1250-500).

SCHEDULE 3

TV Inventory Terms and Conditions

1. Inventory Partners; No Cancellation; Non-Guaranteed; Makegoods. For clarity, “Inventory Partners” mean all third parties who make inventory, including TV inventory, available for purchase through the Platform, which may include via an IO. Nothing herein or in the Agreement shall guarantee that the placement of any advertising shall appear in any particular television program. No successful bids (or portion thereof) for TV inventory may be cancelled by Company once Company wins such bid. The TV inventory provided under these TV Terms is non-guaranteed and may be pre-empted by the supplier or subject to makegoods (at the inventory provider’s discretion).

2. TV Data. Company shall use any data regarding TV inventory provided through the Platform, whether pre-campaign or post-campaign (“TV Data”) solely for purposes of planning and administering campaigns, including post-campaign analysis. Company may not (i) disclose, display, copy, transmit, reproduce, or duplicate the TV Data for any purposes except as expressly stated in this section; (ii) make any use whatsoever including information derived therefrom except as may be permitted directly through the Platform, as otherwise permitted in this section; or (iii) rent, sell, sublicense, transfer, grant any rights in, modify, reverse engineer or create derivative works of (including analytics based on, except as described in this Section) the TV Data.

3. Reporting; Fees. The metrics used to calculate fees shall be as set forth in the Platform (e.g., may be by impressions, by spot or by GRP) to the extent provided by the applicable inventory provider. Metrics may be updated up to 30 days from the end of the month in which the applicable advertisements were run. Additional pass-through fees shall apply for all TV campaigns, including to calculate impressions viewed and audience composition (e.g., demographics), currently 6% or 4.5% of TV Media Spend (the lower fee shall only apply if Company is a Rentrak subscriber at the time of such campaign)).

4. Creative. For purposes of clarification, all advertising and creatives must be in full compliance with all FCC rules, regulations and guidelines. Creatives must be provided to TD at least two full business days in advance of any campaign.

5. LIMITATION OF LIABLIITY. Company’s liability and indemnity obligations for violation of these TV Terms shall not be subject to the limitation of liability stated in the Agreement.

6. Other Terms. Company may be subject to additional terms and conditions relating to TV Services, which shall be communicated to Company in accordance with the Notice provision in the Agreement. Except as otherwise described in these TV Terms or otherwise communicated to Company, all other terms and conditions of the Agreement shall apply.

7. In the event of a conflict between the terms of these TV Terms and the terms of the Agreement, the terms of these TV Terms will govern. These TV Terms shall be governed by the laws of the same state as govern the Agreement.