Trade Desk Advertising Terms

Last updated: April 7 2026

These Trade Desk Advertising Terms (these “Terms”) are incorporated into and made part of the Trade Desk Advertising Agreement or other agreement to run advertising campaigns on the Platform (e.g., insertion order) entered into between TD and Company (collectively with these Terms, the “Agreement”). Any capitalized terms used but not defined in these Terms have the meaning ascribed to them elsewhere in the Agreement.

1. Definitions

“Ad Standards” means TD’s creative content and security requirements set forth in the Ad Content Guidelines located in the TD Wiki (or successor URL) and any applicable Inventory Partner ad standards and technical requirements.

“Affiliate” means, with respect to a party, an entity that such party directly or indirectly controls, is controlled by, or is under common control with.

“APIs” mean application program interfaces, client-side software, or other tools.

“Beta Feature” means any experimental or beta feature and related services, documentation, code, software, and materials provided by TD.

“Client” means, if applicable, any entity on whose behalf Company is acting under these Terms.

“Company Materials” means: (a) information Company provides to create Company’s account on the Platform; and (b) the ad creatives Company, or an Approved Third Party, uses through the Platform.

“Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is marked confidential or should be reasonably understood to be confidential.

“Custom Solution” means any custom solution and related services, documentation, code, software, and materials provided by TD.

“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; (с) IP addresses; (d) UID2s, EUIDs, and 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.

“Feedback” means 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.

“Fees” means the fees shown in the Agreement, the fees shown in any separate written agreement between the parties, and the fees shown in the Platform user interface for any additional optional features and services that Company uses.

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

“Managed Services” means TD’s provision of managed services under this Agreement, such as managing campaigns or purchasing media on behalf of Company or, if applicable, its Clients.

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

“Platform” means TD’s proprietary hosted software platform.

“Services” means the services and functionality made available by TD via or in connection with the Platform from time to time, including any campaign management services, bidding optimization functionality, tags, pixels, macros, APIs, Beta Features, and Custom Solutions.

“Services Data” means the data generated, collected, uploaded, imported, or otherwise provided using the Services.

“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.

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

“Transaction Taxes” means sales, service, use, consumption, value-added, goods-and-services, business, and any similar taxes.

“User Notice” means: (a) a description of the collection and use of data from and about users for advertising purposes by third parties such as TD; and (b) access to available choice mechanisms related to such data collection as required by applicable law.

2. Services

2.1 Self-Serve Usage. Subject to the Agreement and as long as Company is not in breach of its obligations in the Agreement, TD grants Company a non-exclusive, non-transferable right to access and use the Platform on a self-serve basis solely to use the Services. Company will obtain and maintain (and hereby grants to TD) all rights and permissions reasonably necessary to use the Services. To the extent that Company requests TD’s help to use the Services, Company consents to the actions that TD performs on its behalf, provided that TD’s assistance is reasonably within the scope of Company’s request. For the avoidance of doubt, Company is solely responsible for all activity and payments owed under its account(s) and its use of Services.

2.2 Managed Services. In addition to self-service use of the Platform, Company may request that TD provide Managed Services, subject to and pursuant to an insertion order signed by both parties that details the Managed Services.

2.3 Reporting. Company will have access to TD’s online reporting interface. All information from the interface is solely for the internal use of Company and, if applicable, each Client.

2.4 APIs. TD may make APIs available to Company, which may be subject to Company accepting additional fees and terms before accessing the APIs. If Company or an Approved Third Party implements the APIs, the most recently released version of the APIs must be used by no later than six months following the release date of such version. Company shall not share (and shall not permit any Approved Third Party to share) its API key or access information with another party without TD’s prior written consent.

2.5 Beta Features and Custom Solutions. TD may offer to Company the right to use Beta Features or Custom Solutions from time to time. TD may change or discontinue, or terminate or suspend Company’s access to, any Beta Feature or Custom Solution, at any time. Notwithstanding anything in the Agreement to the contrary, in no event will TD be liable for any direct, indirect, incidental, consequential, lost profits, loss of business, loss of goodwill, punitive, special, or exemplary damages arising from or related to the use of Beta Features or Custom Solutions pursuant to the Agreement regardless of the theory of liability (including breach of contract, tort, negligence, strict liability, or otherwise), whether or not such damages are foreseeable or TD has been advised of the possibility thereof.

2.6 Direct Tags. To facilitate campaigns agreed upon directly between Company and publishers, at Company’s request, TD will provide TD tags to the publishers to be implemented on the publisher’s Sites and technical specifications for their implementation. Company shall be solely responsible for obtaining written permission from the publishers to implement the TD tags.

2.7 Direct Bill to Company by Inventory Partner. Company is prohibited from entering into any arrangement where Company pays an Inventory Partner directly for the cost of such Inventory Partner’s ad inventory that is purchased by or on behalf of Company through TD’s Platform (“Direct Bill Inventory”), unless Company: (a) enters into an express written agreement with an Inventory Partner for Direct Bill Inventory; (b) provides written notification (email to Company’s TD account manager sufficing) to TD along with documentation (or written acknowledgement by the Inventory Partner) of the Direct Bill Inventory arrangement; and (с) TD consents, in TD’s sole discretion, in writing (email sufficing) to such Direct Bill Inventory arrangement. If and to the extent that the Inventory Partner releases TD from all payment obligations with respect to such Direct Bill Inventory and the conditions of the preceding sentence are fulfilled, TD will not look to Company for payment of such Direct Bill Inventory. Company must ensure that, for any approved Direct Bill Inventory, the Direct Bill Inventory Deal IDs shall be marked as “direct bill” by the Inventory Partner. For the avoidance of doubt, with respect to any approved Direct Bill Inventory, any costs of data licensed by or on behalf of Company through the Platform and any Fees will be invoiced in accordance with the Agreement.

2.8 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 a fee that shall be agreed in writing.

2.9 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).

2.10 Additional Features and Services. TD may make available additional features or services from time to time, which may require additional fees and terms as set forth in the Platform or by separate agreement between the parties. If creative approval is required, TD may pass on any applicable creative approval fees to Company.

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 the Agreement. Company may request in writing or via the Platform that TD approve and grant access to its account, data, or reporting (via the Platform, APIs or otherwise) (collectively “Account Access”) to other entities, and TD reserves the right to approve or reject any Account Access request. Any entities granted Account Access by TD on Company’s request are collectively referred to herein as “Approved Third Parties.” Company shall ensure that each Approved Third Party: (a) uses Company’s account information solely for Company’s benefit and solely as required to provide services to Company (or if the Approved Third Party is a Client, then for that Client’s internal use) and for no other purpose; and (b) is aware of, and shall comply with, all restrictions for use of the Services, Platform, and data described in the Agreement. TD may suspend or terminate any such Approved Third Party’s access at any time and, for the avoidance of doubt, Company shall be liable for any breach of the Agreement by any Approved Third Party as if Company committed such breach itself. Additional terms, conditions, and fees for Approved Third Party Account Access may apply.

2.12 Company Materials. TD may use Company Materials to provide the Services. For purposes of clarity, as between TD and Company, Company owns all right, title and interest in the Company Materials.

2.13 Adding Affiliates. Company Affiliates may enter into affiliate adopting agreements to become a direct customer of TD (or a TD Affiliate) under the terms of the Agreement (“Adopting Agreements”). Company will be responsible for the actions and obligations of any such Affiliate.

3. Restrictions

3.1 Company will use the Platform and Services only for its own use or, if applicable, for a Client, and solely for the purposes of planning, administering and analyzing advertising campaigns through the Platform.

3.2 Company will not directly or indirectly:

3.2.1 circumvent or attempt to circumvent any TD security measure or interfere with or attempt to interfere with the proper functioning or performance of the Platform or Services;

3.2.2 share its Platform login with, or otherwise grant access to the Platform or Services to, any third party other than an Approved Third Party;

3.2.3 reproduce, distribute, duplicate, extract, modify, edit, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble the Platform or Services (or any feature or component thereof);

3.2.4 use or authorize the use of the Platform, Services or Services Data for any purpose not expressly permitted under the Agreement;

3.2.5 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;

3.2.6 breach the Ad Standards;

3.2.7 breach the provisions in Section 7;

3.2.8 distribute viruses, malicious code or other malware (through the ads or any other mechanism);

3.2.9 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);

3.2.10 use any data that is utilized or made available in the Platform or Services that does not constitute Services Data for any purpose other than in connection with Company’s use of the Platform and Services; or

3.2.11 use the Platform or Services for gathering competitive intelligence.

3.3 TD may immediately suspend any of Company’s access or terminate the Agreement upon its reasonable belief that Company has breached any provision of this Section 3.

4. Payment and Taxes

4.1 Credit, Invoices and Payments.

4.1.1 Company shall be subject to a credit check prior to initiating any campaigns in the Platform and from time to time during the term of the Agreement. TD reserves the right to determine the amount of credit that it extends to Company at any time.

4.1.2 Unless the parties agree otherwise in writing, TD will invoice and Company will pay in US Dollars. Company shall pay each invoice within 45 days of the invoice date.

4.1.3 For any invoice that is not paid in full within the timeframe set forth above, TD reserves the right to: (a) charge interest of 2% per month (or the maximum allowed by law, whichever is lower); (b) suspend access to the Platform and Services; and (с) if Company does not pay an overdue invoice in full within five days of receiving a notice of nonpayment, terminate the Agreement.

4.1.4 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 Non-USD Billing. Prior to creating any partner-level account, Company may request in writing (email to Company’s TD account manager sufficing) that TD bill that account using a non-USD currency that is supported by the Platform, and Company acknowledges that TD may approve or reject Company’s request in TD’s sole discretion. Company may not set more than one currency per partner-level account and cannot change the currency after account creation. TD reserves the right to discontinue supporting any non-USD currency upon at least 90 days’ notice. All non-USD currencies are subject to the daily conversion rates provided by Xignite’s XIgniteGlobalCurrencies API (or a comparable vendor) and an additional non-USD conversion Fee as set forth in the TD Wiki accessible via the Platform which TD may update from time-to-time upon at least 90 days’ notice. For purposes of clarity, any currency Company sets in an advertiser-level account via the Platform is for reporting purposes only and shall not be used for billing purposes.

4.3 Billing Instruction. Company may request in writing (email to Company’s TD account manager sufficing) that TD send Company account invoices to a different entity (the “Bill-To Entity”) to make all payments due to TD under the Agreement, and Company acknowledges that TD may approve or reject Company’s request in TD’s sole discretion. If TD approves the Bill-to Entity, then TD shall send invoices relating to the approved account(s) to the Bill-to Entity beginning on the first day of the calendar month that starts on or after TD’s approval. For purposes of clarity: (a) Company shall remain the recipient of the Services provided by TD under the Agreement and shall be referenced as the “Sold To” on all invoices TD sends to the Bill-To Entity; and (b) Company shall remain responsible for performance of all Company’s obligations under the Agreement (including payment) and Company acknowledges that it is Company’s responsibility for procuring timely payment of the invoices by the Bill-To Entity.

4.4 Taxes. All fees and other amounts due under the Agreement are exclusive of 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. If Company shall at any time be required by applicable law to withhold any present or future tax, assessment or other governmental charge imposed upon any payment due under the Agreement (“Withholding Taxes”), 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 assessed 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 of the Agreement.

5. Counting

5.1 Metrics. 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.

5.2 Discrepancies. 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 will be 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.

5.3 Discrepancy Process. In the event of a discrepancy between Company’s records and TD’s metrics raised by Company in accordance with the previous sentence, Company may inspect the applicable log files, provided that any requests for inspection shall be timely made, and any inspection shall be at reasonable times, and on reasonable notice. Company may not inspect the log files for the same time period more than once and Company may only request inspections up to twice per calendar year. Any data or information (except for Company Materials) 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. TD may update numbers if there is delay in reporting affecting month-end invoicing.

6. Services Data

Each party may use Services Data as follows:

6.1 Company. Company may use Services Data for any internal business purpose if Company: (a) complies with its privacy policy; (b) complies with the terms of the Agreement; and (с) does not disclose data that describes or reflects the performance of the Platform or Services, or any publisher or Inventory Partner, to other parties except any Approved Third Parties who are under confidentiality restrictions, and subject to the terms of the Agreement.

6.2 TD. TD may use Services Data: (a) to provide the Services; (b) internally for any other business purpose (e.g., fraud detection, financial reporting, or improving the Platform and Services); 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). Notwithstanding anything to the contrary in this Section, TD shall not create targeting segments in the Platform using any targeting audiences uploaded by Company. Company acknowledges that Inventory Partners and their publishers have access to information related to Company’s purchase of their inventory.

7. User Privacy

7.1 User Notice. 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 that 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.

7.2 Rights. With respect to any data that Company or any Approved Third Party collects or provides relating to the Services, Company will ensure that all necessary rights and permissions have been established for the use of such data for the purposes of the Agreement and that such use of the data is strictly in compliance with all applicable laws and self-regulatory program requirements such as the DAA Self-Governing Principles in the US, the EDAA European Principles in Europe, or the DAAC principles in Canada. Company acknowledges that TD may append certain parameters to the URL associated with Company’s ad in order to implement click tracking. In addition, TD reserves the right to place the AdChoices icon (or a similar icon) on the ads provided by Company via the Platform at a fee, not to exceed $0.01 CPM.

7.3 Personalized Ads. Without limiting Company’s obligations under any applicable law, Company shall not cause TD or the Platform to process or target personalized ads on the basis of: (a) any information regarding an individual user’s specific health condition or any information or inference regarding health that would be considered sensitive under applicable law or self-regulatory program; (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 age at which targeted personalized ads are permitted as defined by law in the applicable jurisdiction, but in no event lower than 13 years of age); (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; (с) any Directly Identifying Information; or (d) any other information that would be considered protected, sensitive, special, or similar under applicable law or self-regulatory program (such as PHI as defined under the Health Insurance Portability and Accountability Act of 1996 in the US). Company shall not combine any Services Data with any Directly Identifying Information or use any Services Data to, or attempt to, directly identify an individual. Company shall not use the Platform or any Services Data for any non-marketing purposes, including 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.

7.4 Data Processing. The parties agree that certain jurisdictions may impose data privacy requirements that are additional to those contained in the Agreement. 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, the parties hereby agree to abide and be bound by the terms and conditions of the TD Data Processing Addendum as published at https://www.thetradedesk.com/general/dpa (or successor URL) and updated by TD from time to time (the “TD DPA”). The terms of the TD DPA are incorporated herein by reference.

7.5 Notification. 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. TD may immediately suspend any of Company’s use of the Platform or Services if TD reasonably determines that Company has provided to TD or caused TD to process any information in breach of this Section 7.

8. Compliance

8.1 Each party will comply with all applicable laws, rules, and regulations (TD in its provision of the Platform and Services in the form provided, and Company in its provision to TD of Company Materials and as to its use of the Platform and the Services), which shall include, for purposes of clarification, if applicable, Federal Trade Commission guidance on sponsorships and native advertising and Federal Communication Commission rules, regulations and guidelines. Company will comply with the Ad Standards and will indemnify Inventory Partners and their publishers for any Liabilities (defined below) incurred in connection with any third-party claim arising out of or relating to any breach of the Ad Standards. To the extent the Ad Standards conflict with any terms in the Agreement, the Ad Standards shall govern. Company will not 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, government guidance 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 any of Company’s use of the Platform and Services if TD reasonably determines that Company is in violation of any of the foregoing.

8.2 All information, including ads and ad campaigns, provided by Company to TD shall be truthful and accurate.

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.

8.4 In connection with the Services, the parties may have access to categories of data that are restricted under applicable national security laws, rules, and regulations including U.S. law 28 CFR part 202 – Access to U.S. Sensitive Personal Data and Government Related Data by Countries of Concern or Covered Persons (“National Security Restricted Data” and “National Security Laws” respectively). For the avoidance of doubt, neither party shall access or use, or permit others to access or use, National Security Restricted Data in any manner that evades or avoids, causes a breach of, or attempts to breach any National Security Laws. Where a party knows or suspects that access to or use of National Security Restricted Data under or pursuant to the Agreement has occurred in breach of National Security Laws, such party shall immediately inform the other party. Upon reasonable request, each party shall provide all reasonable assistance to the other party to comply with its obligations (including due diligence, record keeping and audit requirements) under National Security Laws.

9. Termination and Suspension

9.1 Termination. In addition to any other termination or suspension rights otherwise set forth in the Agreement, either party may terminate the Agreement for material breach if the other party has failed to cure such breach within 10 days of receiving notice (or immediately upon notice if the material breach is incapable of cure).

9.2 Effect of Termination. To terminate the Agreement, the terminating party shall serve the required notice on the other party as set forth in the Agreement. Upon notice of termination, any minimum fees shall continue to apply through the calendar month of the effective date of termination. Company shall ensure the removal of any TD-provided tags, pixels, macros, or other code from its or, if applicable, its Clients’ Sites on or before the effective date of termination.

9.3 Suspension. TD may suspend any 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 or if Company creates an activated Ad Group (which is a feature of the Platform that specifies the targeting strategy for a campaign) that spends less than $1.00 per day.

9.4 Notwithstanding anything in the Agreement to the contrary, the Agreement will remain in full force and effect with respect to any Adopting Agreements unless and until those Adopting Agreements expire or are terminated in accordance with their terms.

10. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES, AND EACH PARTY DISCLAIMS, ANY WARRANTIES, CONDITIONS, 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, SERVICES, OR ANY INFORMATION PROVIDED BY INVENTORY PARTNERS, DATA PROVIDERS, AND/OR OTHER THIRD PARTIES SHALL BE ERROR-FREE, ALWAYS AVAILABLE, OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION.

11. Limitations on Liability

EXCEPT FOR BREACHES OF SECTIONS 3 AND 13, AND ANY INDEMNIFICATION OBLIGATIONS SET FORTH IN THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE 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 ARISING FROM OR RELATED TO THE AGREEMENT REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), 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 ARISING FROM OR RELATED TO THE AGREEMENT REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF MONTHLY PLATFORM SHARE FEES PAID OR PAYABLE BY COMPANY TO TD DURING THE SIX MONTH PERIOD PRIOR TO THE DATE OF THE FIRST INCIDENT OUT OF WHICH THE LIABILITY 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.

12. Indemnification

12.1 TD shall indemnify, defend and hold harmless Company and its directors, officers, employees and agents (and their respective 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 software that supports the Platform, 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 or any Approved Third Party’s use of the Platform or Services in breach of any terms of the Agreement; or (b) any advertisement or other material which Company or any Approved Third Party makes available on or in connection with the Platform (including data Company provides, landing pages and other materials of Company and, if applicable, 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 shall not enter into any 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; (b) any combination of the Platform and/or Services Data with products or services not supplied by TD, where the cause of action would not have arisen but for such combination; (c) adaptation or modification of the Platform or Services 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 Services Data other than as described in Sections 2 and 6 above; or (f) Company’s failure to use the most recently released version of the APIs in compliance with Section 2.4 above, 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 the 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 the Platform or Services; or (b) modify the Platform or Services so that it becomes non-infringing without affecting the basic functionality of the 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 the 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 this Section 12 are Company’s sole remedy and TD’s sole liability arising out of or relating to such infringement claims.

13. Confidentiality

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). All Beta Features, Custom Solutions, and data of TD underlying the Services or regarding the performance of TD’s 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 (с) 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.

14. Contracting Entity, Governing Law, Jurisdiction, and Notices

14.1 If Company is signing the Agreement with The Trade Desk Inc., then any reference to “TD” in the Agreement 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 The 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 the Agreement.

14.2.2 Any action arising under or related to the Agreement shall 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 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 Notices to Company shall be sent to the Company’s Primary Contact set forth in the Agreement or to the contact information Company maintains in Company’s Platform account.

14.5 Notices must be in writing and are effective when: (a) delivered personally; (b) delivered by a nationally-recognized next-day courier service; (с) sent by email; or (d) posted to Company’s Platform account.

14.6 Company is responsible for keeping its contact information up to date and for promptly notifying TD of a change in its contact information. Company’s failure to provide the proper update shall not delay Company’s obligations to timely pay invoices. Changes to contact information for invoicing should be submitted to TD via email to Company’s TD account manager.

15. Miscellaneous

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

15.2 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.

15.3 Any Feedback is provided voluntarily. Company agrees that all Feedback may be used by TD without compensation, accounting, or attribution to Company, and Company grants a worldwide, perpetual, irrevocable, fully paid-up right and license to the Feedback.

15.4 Unless otherwise expressly set forth in the Agreement or in a supplemental agreement: (a) all supplemental terms and conditions or ancillary agreements agreed to by Company 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 Agreement, 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. To the extent the Platform facilitates any direct deals between Company and any third party (including certain direct private marketplace or programmatic guaranteed deals), such deals are subject to the applicable direct deal terms between such parties.

15.5 TD reserves the right to continually evolve the Platform and Services without notice.

15.6 The Agreement is the entire agreement of the parties relating to its subject matter and supersedes all other commitments, negotiations, and understandings. The Agreement cannot be amended except by a writing signed by both parties or as set forth in Section 15.16 below. If there is a conflict or inconsistency between these Terms and the Advertising Agreement or other agreement to run advertising campaigns on the Platform (e.g., insertion order) entered into between TD and Company, the Advertising Agreement or other such agreement, as the case may be, governs.

15.7 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, as soon as reasonably practicable to do so or immediately upon a public disclosure, whichever is earlier, if all or substantially all of Company’s assets, stock or business are the subject of an acquisition, sale, or merger.

15.8 Company shall provide TD with prompt written notice if at any time during the Term: (a) Company or a Company Affiliate is or becomes a competitor of TD; or (b) 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 (“Competitor Acquisition”). Upon such written notice of a Competitor Acquisition or where TD determines (acting in its sole discretion) that Company or an Affiliate of Company is in competition with TD, TD shall have the right to immediately terminate the Agreement upon written notice to Company.

15.9 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 shall not be affected.

15.10 The parties are independent contractors and, except as otherwise set forth in the Agreement, there are no third-party beneficiaries.

15.11 Sections 3, 4 (until final payment), 6 – 8, and 10 – 15 shall survive expiration or termination of the Agreement.

15.12 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.

15.13 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.

15.14 Company agrees and acknowledges that TD may make the Agreement available to Company in a language other than English solely for Company’s convenience, but Company is only agreeing to the English version of the Agreement. If there is a conflict or inconsistency between the English version of the Agreement and a translated version of the Agreement, the English version of the Agreement governs.

15.15 The words “include,” “includes,” and “including” used throughout this Agreement mean “including without limitation.”

15.16 TD MAY MODIFY THESE TERMS AT ANY TIME UPON NOTICE TO COMPANY AS SET FORTH IN THESE TERMS. COMPANY AGREES TO BE BOUND BY THE UPDATED TERMS IF COMPANY CONTINUES TO USE THE PLATFORM OR SERVICES AFTER THOSE UPDATES BECOME EFFECTIVE.