Campaign Insertion Order Terms and Conditions

Last updated: December 1, 2022

These Campaign Insertion Order Terms and Conditions (these “Terms and Conditions”) govern that certain Campaign Insertion Order (the “Agreement”) entered into between TD and Company. By executing the Agreement, Company agrees to these Terms and Conditions. Any capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement.

CERTAIN DEFINITIONS.

1.1 “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.

1.2 “Directly Identifying Information” means data that directly identifies or reasonably can be used to directly identify an individual, including name, raw (unhashed) email address, postal address, phone number, or government identifier. For the avoidance of doubt, Directly Identifying Information does not include (a) cookie identifiers; (b) advertising identifiers assigned by mobile devices; © IP addresses; (d) other forms of device identifiers generally accepted for use in relation to advertising; and (e) demographic, interest, or browsing behavior data associated with such identifiers.

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

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

1.5 “Media Spend” means the cost of all ad inventory purchased and data licensed by or on behalf of Company through the Platform.
1.6 “Platform” means the TD hosted software platform including Audience Tools and other functionality.

1.7 “Services” means the services and functionality provided by the Platform, any campaign management services, tags and pixels, APIs, and any other services provided by TD from time to time.

1.8 “Sites” includes websites, apps, video or audio programs, or other content and media from which ad inventory is made available by Inventory Partners or from which data is collected or used in association with the Services.

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

2.1 Rights. Company has engaged TD to manage campaigns or provide other managed services, including for TD to purchase advertising on behalf of Company for Company’s or its Clients’ (as defined below) advertising campaigns. Company will obtain and maintain throughout the Term, (and hereby grants to TD), all rights and permissions necessary to buy inventory on Company’s behalf (and on behalf of any third party on whose behalf Company is acting (each, a “Client”)), perform tracking and analytics, and to store and serve ads. Company is solely responsible for all activity and payments owed under its account(s). Company consents to the actions that TD performs on its behalf and retains sole responsibility for any assisted use of the Platform or Services.

2.2 Reporting. Company may be given access to TD’s online reporting interface. All reports (and/or related data) are solely for the internal use of Company and its Clients provided that each Client agrees that such reporting may be used for its own internal purposes. Company shall be fully liable for the breach of the obligations of this section by any Client or third party.

2.3 Campaign Analytics. If Company requests campaign analytics such as click and conversion tracking, TD may append certain parameters to the URL associated with Company’s ad to enable the campaign analytics (“Campaign Analytics Code”). Company may not edit or delete any Campaign Analytics Code without TD’s prior written consent. Upon termination of the Agreement, Company must promptly remove all Campaign Analytics Code.

2.4 Audience Tools. Company may request the use of Audience Tools for a particular campaign. Company shall not attempt to extract or recreate the data underlying the Audience Tools or assemble similar data or audience segments itself or directly or indirectly through a third party.
2.5 APIs. TD may make application program interfaces or client-side software (“APIs”) available to Company at TD’s sole discretion, for additional fees which will be set forth in an order form. If TD allows Company or a Third Party (as defined below) to implement an API, such parties agree to use the most recently released version of the APIs (no later than within 6 months following the release date of such version). Company may not create (and shall not permit any Third Party to create) more than a single API or share its API key or access information with another party without TD’s prior written consent.

2.6 Beta Features. Company may provide permission for TD to use certain experimental features from time to time to provide the Services (“Beta Features”). All Beta Features are provided on an “as is” and “as available” basis, without any representations, warranties, covenants or obligations of any kind, and may be terminated by TD at any time. Any use of Beta Features is solely at Company’s own risk.

2.7 Direct Tags. To facilitate campaigns agreed upon directly between Company and publishers, at Company’s written request and following receipt of prior approval from TD, TD may provide to the publishers TD tags to be implemented on the publisher’s Sites and technical specifications for their implementation. If TD approves such campaigns, Company shall be solely responsible for obtaining written permission from the publishers to implement the TD tags.

2.8 Ad Tags. If Company requests use of the TD ad server, Company is responsible for inputting ad tags so that they are functional, or if TD agrees in advance in writing to input ad tags on Company’s behalf, then upon request from TD, Company is responsible for promptly providing TD with assistance necessary to input 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).

2.9 Connected TV. Purchases of connected TV inventory may be subject to additional terms and conditions, which TD will provide to Company in writing (email sufficing). Creatives intended to be served on connected TV inventory must be provided to TD at least two full business days in advance of any campaign launch.

2.10 Additional Features and Services. TD may roll out additional features or services from time to time, which may require additional fees and terms and conditions as set forth in the Platform or by separate agreement between the parties.

2.11 Third Party Access. Company is responsible for all activity under its account, including maintaining the confidentiality of its account logins and passwords and ensuring that all reporting and data usage complies with these Terms and Conditions. Company may request that TD grant its Clients access to its account, data, or reporting (via the Platform, APIs or otherwise) (collectively “Account Access”) and may request in writing or via the Platform that TD approve and grant Account Access to non-Client third parties. TD reserves the right, in its sole discretion, to reject Account Access to any non-Client third parties. Clients and TD approved non-Client third parties are collectively referred to herein as “Third Parties.” Company shall ensure that all Third Parties (a) use Company’s account information solely for Company’s benefit and solely as required to provide services to Company (or if such Third Party is a Client, then for such Client’s internal use) and for no other purpose, and (b) are aware of, and comply with, all restrictions for use of the Services, Platform and data described in these Terms and Conditions. Company shall be liable for any breach of these Terms and Conditions by any Third Party, as if Company committed such breach itself. Additional terms, conditions, and fees for Third Party Account Access may apply.
RESTRICTIONS. Company will use the Services and direct TD to provide the Services only for Company’s own use or for a Client or for a direct agent with which Company has a direct relationship. Company will not directly or indirectly (a) to the extent given any access to the Platform, (i) circumvent or attempt to circumvent any Platform or TD security measure or interfere with or attempt to interfere with the proper functioning or performance of the Platform or Services, (ii) share its Platform login with, or otherwise grant account access to the Platform or Services, to any third party without the express notification to and approval by TD and pursuant to Section 2.11, (iii) reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble any TD-provided tag, the Platform, Audience Tools (other than Company Data), or any portion thereof, (iv) use, authorize, or direct the use of the Platform or Services for any purpose not permitted under these Terms and Conditions, or (v) copy, sell, transfer, lease, lend, syndicate, or sub-syndicate the Platform or any Service, or use the Platform or Services for co-branding, timesharing, arbitrage (e.g., reselling), service bureau or other unauthorized purposes, (b) utilize or direct TD to utilize rotating ad tags or otherwise violate the Ad Standards, © violate or cause TD to violate the provisions in Section 7, (d) distribute or cause TD to distribute viruses or other malware (through the ads or any other mechanism), (e) create or direct TD to 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), (f) use or direct TD to use the Platform or Services for gathering competitive intelligence, or (g) create, cause, or direct TD to create an activated Ad Group (which is a feature of the Platform that specifies the targeting strategy for a campaign) that spend less than $1.00 per day. TD may immediately suspend Company’s access or terminate the Agreement upon its reasonable belief that Company has breached or caused TD to breach any provision of this Section 3. In the event of a breach of this Section 3 that results in a termination or suspension of TD’s ability to conduct business with a third party partner (e.g., an Inventory Partner), without limiting any rights or remedies available to TD and notwithstanding any other provision in the Agreement to the contrary, TD may immediately terminate the Agreement and Company shall be liable to TD for all lost profits resulting from suspension or termination.
PAYMENT AND TAXES.

4.1 Credit, Invoices and Payments. Company may be subject to a credit check prior to initiation of campaigns in the Platform and from time to time. TD reserves the right to determine the amount of credit that it extends to Company at any time. Each month, TD will provide Company its invoice for all amounts owed for the previous calendar month. 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) if Company does not pay an overdue invoice in full within 5 days of receiving a notice of nonpayment, suspend Services or terminate the Agreement . If Company chooses to pay its invoice via credit card, a 3% convenience fee shall be added to such amounts. All payments due under the Agreement shall be made without setoff or deduction.

4.2 Taxes. All fees and other amounts due under the Agreement are exclusive of sales, service, use, consumption, value-added, goods-and-services, business and any similar taxes (collectively, “Transaction Taxes”). If TD is required to charge and collect Transaction Taxes under applicable law then Company shall provide to TD all information necessary for TD to issue a tax invoice to Company. In the event that TD does not charge Transaction Taxes at the time of initial invoicing but the relevant government authority determines that TD should have charged and collected such Transaction Taxes, then Company shall pay to TD said Transaction Taxes no later than 30 days from receipt of a tax invoice and notice of the determination from TD, and TD shall indemnify and hold harmless Company against any interest or penalties imposed. If Company shall at any time be required by applicable law to withhold any present or future tax, assessment or other governmental charge (“Withholding Taxes”) imposed upon any payment due under the Agreement, then Company shall timely remit any Withholding Taxes to the relevant government authority and shall promptly provide TD with documentary evidence of such remittance acceptable to TD and such assistance as TD requests to allow TD to claim a credit for such Withholding Taxes withheld. Company shall indemnify and hold harmless TD against any interest or penalties imposed for failure to timely withhold and remit such Withholding Taxes. The parties shall act reasonably and in good faith in cooperating with each other to provide relevant resale certificates, treaty certification or other exemption information and documentation as may be appropriate and on a timely basis to satisfy applicable law and governmental authorities to mitigate the imposition of Transaction Taxes and Withholding Taxes under the Agreement. Company shall notify TD if the location from which the Services are predominantly used or consumed by Company is different from Company’s country of formation or if the location of predominant use or consumption changes at any time during the Term.

4.3 Creative Approval Fees. If creative approval is required, TD shall have the right to pass on the creative approval fee to Company.
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. 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 Inventory Partner 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 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 thirty (30) days of the date of the applicable invoice. TD may update numbers if there is delay in reporting affecting month-end invoicing.
OWNERSHIP AND DATA USAGE.

6.1 Company Data. As between TD and Company, Company owns all right, title and interest in (a) all data Company imports into the Platform, including but not limited to information about advertising campaigns and Company’s account (“Company Data”), and (b) the ads Company provides. TD may use Company Data solely to provide the Services available under the Agreement.

6.2 TD Data. As between TD and Company, TD owns all right, title and interest in (a) the data residing in the Platform and Services that does not constitute Company Data, Business and Campaign Data (defined below) or third party data underlying the Audience Tools (“TD Data”) and (b) the Services. Company may use TD Data solely in connection with its use of the Platform and Services.

6.3 Business and Campaign Data. Each party may use the data generated by Company’s use of the Services (“Business and Campaign Data”) as follows. Company may use Business and Campaign Data for any internal business purpose provided that (a) it complies with its privacy policy, (b) it complies with these Terms and Conditions, and © 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 other parties except Company’s Third Party service providers who are under confidentiality restrictions, and subject to the terms of these Terms and Conditions. TD may use Business and Campaign Data (i) to provide the Services, (ii) internally for any other business purpose (e.g., fraud detection or financial reporting), and (iii) 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 and their publishers have access to Company Data and other information in connection with the purchase of their inventory.

6.4 Feedback. Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by Company to TD relating to the Platform, the Services or any other services or products of TD (collectively, “Feedback”) are provided voluntarily. Company agrees that all Feedback 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 the Feedback.

6.5 Reservation of Rights. 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.
USER PRIVACY.

7.1 Each party will take measures to ensure that users are provided User Notice on Sites where data is collected and used in association with the Services. Each party will have, and will make commercially reasonable efforts to contractually obligate their partners who may provide or use data in association with the Services (i.e. advertisers and other demand partners of Company, and Inventory Partners of TD) to have, User Notice included in a clear and conspicuous privacy notice available prominently from its Site. “User Notice” means (i) a description of the collection and use of data from and about users for advertising purposes by third parties such as TD, and (ii) access to an opt in or opt out choice with respect to such data collection that applies to TD, including with respect to cookies and similar technologies as is required by law or otherwise in accordance with industry self-regulatory principles. Each party will take reasonable steps to ensure that all User Notices accurately describe data collection and use associated with Company’s use of the Services and, at minimum, include the information required and meet the standards for notice to users set by the Network Advertising Initiative (“NAI”) in the NAI Code of Conduct and associated guidance, including as relevant to the circumstances, the guidance on Viewed Content Advertising, Cross-Device, Non-Cookie Technologies, and any superseding, additional, or supplementary guidance (“NAI Code”) in the US; or, (ii) described in TD’s Notice and Choice Guidelines located in the TD Wiki (or successor URL) anywhere else in the world. Additionally, each party will, in all applicable respects, follow the requirements of the applicable local self-regulatory program such as the DAA Self-Governing Principles in the US (currently found at aboutads.info), the EDAA European Principles (currently found at edaa.eu) in Europe, or the DAAC principles (currently found at youradchoices.ca) in Canada.

7.2 Without limiting Company’s obligations under any applicable law, Company shall not cause TD or the Platform to process: (a) any information regarding an individual user’s specific health condition or any information or inference regarding health that would be considered sensitive under: (i) the NAI Code in the US, or (ii) any applicable self-regulatory program, regulation or law anywhere else in the world; (b) any information associated with a persistent identifier that is: (i) from or about individuals Company knows or should know are children (children being individuals less than the greater of 13 years of age or the age defined by law in any applicable jurisdiction), (ii) any information from inventory that Company knows or should know is directed to children, or (iii) any user or audience segments directed at or identifying children; © any Directly Identifying Information; or (d) any other information that would be considered sensitive, special, or similar under applicable local law or local self-regulatory program. Company shall not combine any TD Data or Business and Campaign Data with any Directly Identifying Information or use any TD Data or Business and Campaign Data to, or attempt to, directly identify an individual. Company shall not use the Platform or any TD Data or Business and Campaign Data for any non-marketing purposes, including without limitation decisions relating to eligibility for, or pricing of, employment, credit, health care, insurance, housing, or education. TD may restrict the data that it allows or makes available on the Platform in its reasonable discretion to protect user privacy.

7.3 For any data that Company or its clients collect using the Platform or upload into the Platform, or direct to be collected or uploaded, such as by using Platform features like pixels, tags, cookies, or APIs, Company will ensure that all necessary rights and permissions are established for the use of such data in the Platform and in association with the Services, and that such use of the data is strictly in compliance with all applicable laws and applicable self-regulatory requirements. If Company implements the Campaign Analytics Code, User Notice must be included on the Sites where the Campaign Analytics Code is used and must identify TD specifically. In addition, TD reserves the right to place the AdChoices 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.

7.4 The parties agree that certain jurisdictions may impose data privacy requirements that are additional to those contained in these Terms and Conditions. To the extent that TD processes data on Company’s behalf that is from or about individuals in regions where these additional requirements are prescribed, Company hereby agrees to abide and be bound by the terms and conditions of, as applicable: (i) the TD Data Processing Agreement (the “TD DPA”) as published at https://www.thetradedesk.com/g… (or a successor URL) and updated by TD from time to time; and/or (ii) the TD Privacy Addendum (the “Privacy Addendum”) as published at https://www.thetradedesk.com/g… (or a successor URL) and updated by TD from time to time. As applicable to the parties based on the data being processed hereunder, the TD DPA and/or the Privacy Addendum shall be incorporated herein by reference.

7.5 If Company becomes aware that it provided to TD or caused TD to process any information in breach of this Section 7, Company shall, at Company’s sole cost, immediately notify TD in writing and take all necessary steps to assist TD in responding to the breach by removing the data and doing anything else necessary to come into compliance.
COMPLIANCE.

8.1 Each party 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 in the US, for purposes of clarification and not of limitation, Federal Trade Commission guidance on sponsorships and native advertising and, if applicable, Federal Communication Commission rules, regulations and guidelines. Company will comply with TD’s Ad Content Guidelines located at https://www.thetradedesk.com/a… (or such successor location), TD’s security requirements and any applicable Inventory Partner ad standards and technical requirements (all of the foregoing, the “Ad Standards”). To the extent the Ad Standards conflict with terms in these Terms and Conditions, the Ad Standards shall govern. Company will not use the Platform or direct TD to use the Platform in connection with any ads (or the targeting thereof) or other digital content that are obscene or pornographic, depict illegal activity; violate any law, regulation or third party right (including intellectual property and privacy rights); or that are deceptive or defamatory. TD may immediately reject ads, suspend any campaign, or suspend Company’s use of the Platform and Services or terminate the Agreement if TD reasonably determines that Company is in violation of any of the foregoing.

8.2 All information provided by Company to TD regarding itself and its Clients (including its and their identity and operations), ads and ad campaigns shall be truthful and correct.

8.3 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 agrees that it 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. Company represents that it is not named in any U.S. government denied party list and shall immediately notify TD in the event it is named on any such list.
TERMINATION/SUSPENSION. A party may terminate the Agreement (a) for any reason or no reason on 14 days’ prior written notice to the other, or (b) for material breach, if the other party has failed to cure such breach within 5 days of receiving notice (or immediately upon notice if the material breach is incapable of cure). To terminate the Agreement, the terminating party shall serve the required notice on the other party as set forth in these Terms and Conditions. TD may suspend access to the Platform and use of the Services if TD reasonably believes that Company’s continuing use of the Platform or Services may cause risk of litigation or otherwise be harmful to TD.
DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTTH IN THE 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 SERVICES, 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.
LIMITATIONS ON LIABILITY. EXCEPT FOR VIOLATIONS OF SECTIONS 3, 13 AND ANY INDEMNIFICATION OBLIGATIONS SET FORTH IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, 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 OR PAYABLE BY COMPANY TO TD IN FEES DURING THE SIX MONTH PERIOD PRIOR TO THE DATE THE LIABILITY FIRST AROSE. IN NO EVENT SHALL A PARTY BE ENTITLED TO RECOVER MORE THAN ONCE FOR THE SAME CATEGORY OF LOSS OR DAMAGE FROM THE SAME INCIDENT UNDER BOTH THE AGREEMENT AND THE TD DPA, OR OTHERWISE. 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 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 AND FEES INCURRED. FOR THE AVOIDANCE OF DOUBT, THE LIMITS ON LIABILITY SET OUT IN THIS SECTION SHALL NOT APPLY IN RESPECT OF EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE, WILFUL MISCONDUCT, FRAUD OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
MUTUAL INDEMNIFICATION.

12.1 TD shall indemnify, defend and hold harmless Company and its directors, officers, employees and agents (and successors, heirs and assigns) (“Company Parties”) against any claim, 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 (“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, any Third Party’s use or TD’s Company-directed use of the Platform or Service in contravention of any terms of this Agreement; or (b) any advertisement or other material with which Company or any Third Party uses or causes TD to use on or in connection with the Platform (including the ads, landing pages and other materials of Company and its Clients). 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. Without the indemnified party’s prior written consent, which, in the case of (i) and (ii) below, shall not be unreasonably withheld or delayed, the indemnitor will not enter into a settlement or compromise that (i) would not fully absolve the indemnified party of liability; (ii) would contain any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of the indemnified party; or (iii) would restrict or limit the indemnified party’s business or operations. With respect to any data privacy, or other governmental or regulatory investigation or claim, the indemnified party shall have the option to have sole control of the defense and any settlement negotiations at the indemnitor’s expense.

12.2 TD shall have no obligation for any claim arising from or related to (a) compliance with Company specifications or directions, (b) any combination of the Platform and/or Business and Campaign Data with products or services not supplied by TD, where the cause of action would not have arisen but for such combination, © adaptation or modification of the Platform or Business and Campaign Data, where the cause of action would not have arisen but for such adaptation or modification, (d) Company’s failure to follow instructions provided by TD which would have cured the cause of action, 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 Section 6 above, or (f) Company’s continued use of a version of the Platform or APIs other than the most recently released version, where such cause of action would not have arisen if such most recently released version had been used. If any of the subsections above apply, Company will indemnify, defend and hold harmless the TD Parties from and against any Liabilities arising directly or indirectly out of such claims.

12.3 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 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 the Agreement with respect to such Platform or Services by giving Company 30 days written notice, upon which termination TD shall refund the portion of any pre-payments made by Company for Services not yet rendered. TD’s obligations as stated in Section 12 are Company’s sole remedy and TD’s sole liability arising out of or relating to such infringement claims.
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 the 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, Platform, 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 the 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 © was independently developed by the receiving party without violation of this Section 13. 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 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 13; (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 13; (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 13) the Third Party Data.
CONTRACTING ENTITY, GOVERNING LAW, JURISDICTION & NOTICES

14.1 If Company is signing the Agreement with The Trade Desk Inc., then any reference to “TD” hereunder shall be to “The Trade Desk Inc.” and the following shall apply:

14.1.1 The Agreement is governed by the laws of the State of California, excluding its conflicts of laws principles.

14.1.2 Any action arising under or related to the Agreement will be resolved in the state or federal courts (and the parties hereby consent to personal jurisdiction therein) 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.

14.1.3 If Company is required to provide any notices to TD hereunder, such notices shall be sent to the following address:

The Trade Desk, Inc.
42 N. Chestnut Street
Ventura, CA 93001
Attention: Chief Legal Officer
Email: Legal@thetradedesk.com

14.2 If Company is signing the Agreement with The UK Trade Desk Ltd then any reference to “TD” hereunder shall be to “The UK Trade Desk Ltd” and the following shall apply:

14.2.1 This Agreement is governed by the laws of England, excluding its conflicts of laws principles. The parties agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

14.2.2 Any action arising under or related to this Agreement will be resolved in the courts (and the parties hereby consent to personal jurisdiction) in London, England. The prevailing party is entitled to recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorneys’ fees. Each party acknowledges that electronic signature provided by it, regardless of the means, shall be a valid electronic signature and that each party, by providing an electronic signature is creating a binding contract. Each party also acknowledges that this contract is being concluded in the United Kingdom.

14.2.3 If Company is required to provide any notices to TD hereunder, such notices shall be sent to the following address:

The UK Trade Desk Ltd
c/o The Trade Desk Inc.
42 N. Chestnut Street
Ventura, CA 93001
Attention: Chief Legal Officer
Email: Legal@thetradedesk.com

14.3 Notices to Company shall be sent to the Company Primary Contact set forth in the Agreement, to the contact information Company maintains in Company’s Platform account, or to Company’s CEO, CFO, or President. If notice is sent via email, the sending party must confirm that (x) the email was apparently sent successfully according to its ordinary technical records, (y) the sending party does not receive an error notice, and (z) 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 for invoicing should be submitted to: ar@thetradedesk.com.

14.4 Notices must be in writing and are effective when (a) delivered personally; (b) received from a nationally-recognized next-day courier service, or © sent by email as above.
MISCELLANEOUS.

15.1 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.
15.2 Unless otherwise expressly set forth in the Agreement or in a supplemental agreement, (a) all supplemental terms and conditions or ancillary agreements entered into between the parties for additional features or services will be subject to the terms of the Agreement, and (b) to the extent that the terms of a supplemental or ancillary agreement conflicts with the terms of the Agreement, the terms of the Agreement shall govern. Any additional terms beyond those in the Agreement that Company includes in an order form, insertion order, or similar document will be of no force and effect unless TD expressly agrees in writing to have such terms supersede the terms of the Agreement.
15.3 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.
15.4 This is the entire agreement of the parties relating to this subject and it supersedes all other commitments, negotiations and understandings. The Agreement cannot be amended except by a writing signed by both parties. The Agreement cannot be assigned without written consent of the non-assigning party, except that either party may assign the Agreement, upon written notice to the other party, (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. Company shall provide written notice to TD if all or substantially all of Company’s assets, stock or business are the subject of an acquisition, sale or merger. If at any time during the Term (i) Company has an Affiliate that is or becomes a competitor of TD, as determined in TD’s sole discretion, or (ii) all or any portion of Company’s assets, stock or business are the subject of a direct or indirect acquisition, sale or merger with a competitor of TD, as determined in TD’s sole discretion, TD shall have the right to immediately terminate the Agreement upon written notice (email sufficing) to Company. If any provision of the 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 3, 4 (until final payment), 6 – 8, and 10 – 15 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.
15.5 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.
15.6 Multiple signature pages, signatures delivered via pdf copy or fax, and electronic signatures will all constitute originals and together constitute the same instrument.
15.7 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.
15.8 Nothing in the Agreement will be construed as a binding obligation of a party until the Agreement is executed by both parties.