Terms and Conditions to the Ads Marketplace Publisher Platform Insertion Order
This Insertion Order, between Ads Marketplace, LLC, a Texas limited liability company ("ADM"), with its principal place of business at 30401 Agoura Road, Suite 100, Agoura Hills, CA 91301, and the publisher identified in the Insertion Order ("Publisher"), together with these Terms and Conditions, constitutes the ADM Publisher Platform Agreement (this "Agreement") and sets forth the rights and obligations of each Party with respect to the managed email monetization services described herein. ADM and Publisher are each a "Party" and collectively, the "Parties."
WHEREAS, ADM operates a managed email monetization network that provides advertising placement, demand sourcing, campaign optimization, yield management, performance reporting, creative quality control, and deliverability monitoring services for email newsletter publishers; Publisher owns, operates, or controls one or more email newsletter properties and wishes to monetize advertising inventory within those properties; and the Parties wish to engage ADM to provide managed services for programmatic and direct-sold advertising monetization on the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized terms have the meanings set forth below. Additional defined terms may appear elsewhere in this Agreement or on the Insertion Order on Page 1 (the "IO"). In the event of any conflict between the IO and these Terms and Conditions regarding commercial terms, the IO controls; in all other cases, these Terms and Conditions control.
"Ad Tags" means the HTML tags, JavaScript tags, tracking pixels, macros, and related technical implementations provided by ADM that Publisher is required to install within the Publisher Properties in order to serve advertising through the Platform.
"Applicable Law" means all federal, state, local, and foreign laws, statutes, regulations, ordinances, and rules applicable to a Party's performance under this Agreement, including without limitation the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the California Consumer Privacy Act (as amended), the General Data Protection Regulation (to the extent applicable), and all other applicable data protection and advertising laws.
"CNAME" means a Canonical Name record, or A Record, in the Domain Name System configured by Publisher at the direction of ADM to support tracking, deliverability, and related technical functions of the Platform.
"Confidential Information" has the meaning set forth in Section 13.
"Gross Ad Revenue" means all gross amounts actually received by ADM from advertisers, demand-side platforms, agencies, or other demand partners that are specifically attributable to ad impressions, clicks, or other billable events served by the Platform within the Publisher Properties.
"Net Ad Revenue" means Gross Ad Revenue less the following deductions, in each case to the extent actually incurred and directly attributable to such Gross Ad Revenue: (i) third-party ad-serving, verification, measurement, and demand-partner fees passed through at cost; (ii) taxes (excluding taxes on ADM's net income); (iii) chargebacks, refunds, credits, and uncollectible amounts; and (iv) bona fide fraud-related adjustments applied by demand partners.
"Platform" means the proprietary technology platform operated by ADM (whether owned, licensed, or operated on ADM's behalf) that facilitates the delivery, measurement, and optimization of advertising within email newsletter properties, together with all related tools, dashboards, reporting interfaces, and Ad Tags.
"Platform Fee" means the share of Net Ad Revenue retained by ADM as set forth in Section 6.1.
"Publisher Properties" means the email newsletter properties identified on the IO, together with any additional email newsletter properties that the Parties subsequently add by mutual written agreement.
"Self-Sold Ad" means an advertisement sold directly by Publisher (including house advertisements or cross-promotions) and served through the Platform rather than through ADM's programmatic demand sources.
"Services" means the managed services described in Section 4, together with any additional services expressly set forth on the IO.
"Subscriber" means an individual end user who has affirmatively opted in to receive email communications from a Publisher Property.
"Subscriber Data" means any data that identifies or can reasonably be used to identify a Subscriber, including without limitation name, email address, postal address, telephone number, and any persistent identifier associated with a specific individual.
"Term" has the meaning set forth in Section 9.1.
2. Insertion Order; Order of Precedence.
2.1 IO. The specific Publisher Properties, fee structure, and commercial terms applicable to the Services are set forth on the IO and incorporated herein by reference. The Parties may modify, supplement, or replace the IO only by a written instrument signed by authorized representatives of both Parties.
2.2 Order of Precedence. In the event of a conflict between these Terms and Conditions and the IO, these Terms and Conditions control, except that the IO controls with respect to commercial terms (fees, payment schedule, Publisher Properties, and any special terms expressly set forth therein).
3. Implementation.
3.1 Ad Tag Implementation. Publisher will, with implementation support from ADM, install and maintain the Ad Tags within the Publisher Properties in accordance with ADM's written implementation guidelines. Publisher will implement all Ad Tag updates requested by ADM within thirty (30) days of such request, and will repair any broken Ad Tags within fifteen (15) business days of ADM's written notice.
3.2 CNAME and Technical Setup. Publisher will configure and maintain the CNAME records and related technical infrastructure reasonably required by ADM to support the Services, including without limitation any click-tracking and deliverability configurations specified in writing by ADM.
3.3 Seeding. Publisher will add the seed email address(es) designated in writing by ADM to all mailing lists for Publisher Properties served by the Platform, and will not suppress, filter, or otherwise alter delivery to such seed addresses.
3.4 Revenue Reporting and Postback Accuracy. Publisher will provide accurate and complete revenue reporting for all self-sold ad interactions served through ADM. Where a server-to-server postback is used as the method of revenue reporting, such postback must include the original click identifier issued by ADM and the associated revenue amount attributable to that click event. Postbacks will be accepted by ADM for a period of up to thirty (30) calendar days following the original click event. Postbacks received after such period will not be eligible for revenue recognition or payout calculation.
3.5 No Third-Party Interference. Publisher will not modify, obfuscate, circumvent, or disable the Ad Tags, nor permit any third party to do so, except at ADM's written direction.
4. Services.
During the Term, ADM will provide the following managed services with respect to the Publisher Properties (collectively, the "Services"): (a) Ad Tag implementation support and ongoing technical assistance; (b) demand sourcing from programmatic demand partners, advertisers, and agencies; (c) campaign optimization and yield management, including floor management and demand mixing; (d) performance reporting and analytics made available through the Platform or delivered via periodic reports; (e) creative quality assurance and ad-content review; (f) deliverability monitoring and reporting; (g) billing and collection from advertisers and demand partners; and (h) such additional services as are expressly set forth on the IO.
4.1 Service Levels. ADM will use commercially reasonable efforts to provide the Services in a professional and workmanlike manner, consistent with industry standards for managed email monetization services. ADM does not guarantee any specific revenue amount, fill rate, or other quantitative performance outcome, though it may provide non-binding estimates.
4.2 Reporting. ADM will make performance reports available to Publisher through the Platform or via a mutually agreed reporting cadence, with detail sufficient for Publisher to reconcile revenue earned during each calendar month.
4.3 Fallback Inventory. In the event that a given ad impression is not filled by ADM's demand sources, Publisher may configure the applicable ad unit to (a) collapse at no cost to Publisher, (b) serve a Publisher Self-Sold Ad or house advertisement, or (c) allow ADM to serve a public-service or default creative at no cost to Publisher.
5. Publisher Obligations.
5.1 Implementation and Maintenance. Publisher will implement and maintain the Ad Tags and CNAME configuration as set forth in Section 3.
5.2 List Hygiene. Publisher will maintain reasonable list-hygiene practices, including prompt removal of hard-bounced addresses and unsubscribes, regular suppression-list updates, and good-faith efforts to ensure that mailing lists consist only of Subscribers who have affirmatively opted in.
5.3 Send-Volume Data. Publisher will provide ADM with accurate and timely information regarding estimated monthly send volumes, send cadence, and material changes to any Publisher Property, and will promptly notify ADM of any material deviation from the estimated send volume set forth on the IO.
5.4 Legal Compliance. Publisher will comply with all Applicable Law in its operation of the Publisher Properties, including without limitation the CAN-SPAM Act, applicable state and federal privacy laws, applicable commercial email regulations, and all applicable rules of the email service providers through which the Publisher Properties are distributed.
5.5 Deliverability and Reputation. Publisher will operate the Publisher Properties in a manner consistent with industry-standard deliverability and sender-reputation practices, and will cooperate in good faith with ADM's deliverability monitoring and remediation efforts.
5.6 Accuracy of Information. All information provided by Publisher on the IO and in connection with this Agreement will be true, accurate, and complete in all material respects.
6. Fees and Payment.
6.1 Ad Serving Usage Fees. For any Ads served through the Platform, ADM will deduct Ad Serving Usage Fees (as set forth in the Insertion Order) from Gross Ad Revenue collected based on per thousand impressions (CPM) (the "Ad Serving Usage Fee") for Ads served through the Platform within the Publisher Properties. ADM may invoice monthly in arrears or net against amounts otherwise payable to Publisher under this Agreement.
6.2 Platform Fee. For ADM Ads served through the Platform, ADM will deduct Platform Fee, calculated as a percentage of Net Ad Revenue (as set forth in the Insertion Order) collected by ADM from ad placements served by the Platform within the Publisher Properties. ADM will pay the remaining balance of the Net Ad Revenue ("Revenue Share") to the Publisher.
6.3 Self-Sold Ads Fee. For Publisher Ads served as Self-Sold Ads through the Platform, Publisher will pay ADM the Self-Sold Ads Fee, calculated as a percentage of Publisher Ad Revenue, as set forth in the Insertion Order (the "Self-Sold Ads Fee"). The Self-Sold Ads Fee is in addition to, and does not replace, the Ad Serving Usage Fee in Section 6.1, or Platform Fee in Section 6.2. ADM may invoice the Self-Sold Ads Fee monthly in arrears or net it against amounts otherwise payable to Publisher under this Agreement.
6.4 Setup Fee. Publisher will pay ADM a one-time setup fee in the amount specified in the Insertion Order, payable within thirty (30) days of execution of this Agreement. ADM may, in its sole discretion, (a) waive the Setup Fee in whole or in part as condition on launch, in which case the Setup Fee will be waived if the applicable Publisher Property launches within thirty (30) days of the Effective Date and will become due and payable in full upon expiration of such thirty (30)-day period if launch has not occurred.
6.5 Payment Schedule. ADM will remit payment of amounts due to Publisher within sixty (60) days following the close of each calendar month in which the applicable Net Ad Revenue was received by ADM from the relevant advertiser or demand partner. Publisher will remit payment of amounts due to ADM under Sections 6.3 and 6.4 within thirty (30) days of the applicable invoice date.
6.6 Minimum Payment Threshold. ADM will not be required to issue payments to Publisher for amounts less than \$100 in any given pay period. Amounts below the minimum threshold will roll over to the next pay period in which the accumulated balance exceeds the threshold. Any final balance below the minimum threshold will be paid upon termination of this Agreement without regard to the threshold, provided Publisher has satisfied its post-termination obligations under Section 9.3.
6.7 Payment Method. All payments will be made by ACH transfer or wire in United States dollars to an account designated in writing by the receiving Party. Publisher is responsible for providing and maintaining accurate account and tax information (including a completed IRS Form W-9 or W-8, as applicable).
6.8 Taxes. Each Party is responsible for its own applicable taxes. Publisher is responsible for any sales, use, value-added, or similar taxes owed as a result of amounts received under this Agreement, and will indemnify and hold ADM harmless from any such taxes.
6.9 Disputed Amounts. Any dispute regarding a payment under this Agreement must be submitted to the other Party in writing within sixty (60) days of the applicable payment or statement, or it will be deemed waived.
6.10 Counting and Measurement. ADM will be responsible in good faith for the calculation of statistics, impressions, clicks, and revenue generated through the Platform, subject to reasonable reconciliation with demand partners and advertisers.
7. Exclusivity.
7.1 Exclusivity on Programmatic Inventory. During the Term, Publisher will dedicate all auction-based, programmatic, and exchange-based email advertising placements within the Publisher Properties solely to ADM. For clarity, Publisher will not permit any other auction-based or programmatic email advertising service to serve ads within the same email campaigns that contain ads served by the Platform.
7.2 Carve-Out for Self-Sold and House Ads. Nothing in Section 7.1 restricts Publisher's right to (a) sell and serve Self-Sold Ads and sponsorships to advertisers with which Publisher has a direct commercial relationship, (b) run house advertisements, cross-promotions, or editorial content, or (c) execute Self-Sold Ads through the Platform. Publisher may choose whether to serve its Self-Sold Ads through the Platform (subject to the Ad Serving Usage Fee in Section 6.2 and the Self-Sold Ads Fee in Section 6.3) or through Publisher's own independent serving infrastructure.
8. Data Usage.
8.1 Anonymized and Aggregated Data. ADM may collect, use, and retain anonymized and aggregated data generated through the Services --- including anonymized ad-performance data, ad-interaction data, device and browser metadata, and similar technical data --- solely for the purposes of (a) operating, optimizing, and improving the Platform and Services; (b) generating reports for Publisher and for ADM's own internal analytics; and (c) detecting and preventing fraud, abuse, and invalid traffic.
8.2 Data Not Collected or Shared. ADM will not (a) sell, license, or share Subscriber Data with any third party for such third party's independent marketing purposes; (b) combine Subscriber Data collected from the Publisher Properties with data from other publishers for the purpose of building subscriber-level profiles usable across publishers; or (c) engage in any form of cross-publisher data sharing that associates a given Subscriber with activity across multiple publishers.
8.3 Publisher Ownership of Subscriber Data. As between the Parties, Publisher retains all right, title, and interest in and to Subscriber Data and the Subscriber relationships associated with the Publisher Properties. ADM's rights are limited to those expressly granted in this Agreement.
8.4 Data Deletion on Request. On Publisher's written request following termination of this Agreement, ADM will delete or anonymize (at ADM's election) any remaining non-aggregated data attributable to the Publisher Properties within a commercially reasonable time, except to the extent retention is required by Applicable Law or for ADM's legal, accounting, or back-up purposes.
8.5 Data Usage Policy. The Data Usage Policy attached as Exhibit A sets forth the framework under which ADM handles data collected in connection with the Services. In the event of any conflict between Exhibit A and this Section 8, this Section 8 will control.
9. Term and Termination.
9.1 Term. This Agreement commences on the Effective Date set forth on the IO and will continue for an initial term of [one (1) year] (the "Initial Term"). The Agreement will automatically renew for successive [one (1)-year] periods (each, a "Renewal Term" and, together with the Initial Term, the "Term") unless either Party provides written notice of non-renewal at least [thirty (30)] days prior to the end of the then-current Term.
9.2 Termination for Cause. Either Party may terminate this Agreement for cause upon written notice to the other Party if the other Party materially breaches this Agreement and fails to cure such breach within [fifteen (15)] days after receiving written notice describing the breach in reasonable detail.
9.3 Effect of Termination. Upon the expiration or termination of this Agreement for any reason: (a) Publisher will remove all Ad Tags from the Publisher Properties within [ten (10)] business days; (b) ADM will, subject to Section 6.5 and Section 6.6, pay Publisher all earned but unpaid amounts attributable to Net Ad Revenue received by ADM as of the effective date of termination, in the ordinary payment cycle following receipt; (c) each Party will return or destroy the other Party's Confidential Information in accordance with Section 13; and (d) the provisions of this Agreement that by their nature are intended to survive termination (including Sections 6, 8, 10, 11, 12, 13, 14, 15, 17, 18, 19, and 24) will so survive.
9.4 Suspension. ADM may suspend the Services (in whole or in part) without liability upon reasonable notice if (a) Publisher is in material breach of this Agreement; (b) ADM reasonably believes that continued provision of the Services presents a security, fraud, or deliverability risk; or (c) suspension is required by Applicable Law or by a demand partner's policies. ADM will use commercially reasonable efforts to limit the scope and duration of any such suspension.
10. Representations and Warranties.
10.1 Mutual Representations. Each Party represents and warrants to the other that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation; (b) it has full power and authority to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement constitutes its valid and binding obligation, enforceable in accordance with its terms; (d) its execution, delivery, and performance of this Agreement do not and will not conflict with or breach any other agreement to which it is bound; and (e) it will comply with all Applicable Law in its performance under this Agreement.
10.2 Publisher Representations. Publisher further represents, warrants, and covenants that: (a) Publisher owns or controls the Publisher Properties and has all rights necessary to grant ADM the access and rights contemplated by this Agreement; (b) each Subscriber on the mailing lists of the Publisher Properties has affirmatively opted in to receive commercial email communications that may contain advertising; (c) Publisher's operation of the Publisher Properties complies and will continue to comply with the CAN-SPAM Act and all other Applicable Law; (d) Publisher's mailing lists are of commercially reasonable quality and are not derived from purchased, harvested, appended, or non-opt-in sources; and (e) Publisher has and will maintain a publicly available privacy notice that accurately discloses its data-collection and advertising practices.
10.3 ADM Representations. ADM further represents, warrants, and covenants that: (a) the Services will be provided in a professional and workmanlike manner consistent with industry standards; and (b) the Platform will not knowingly contain any malicious code, viruses, or similar harmful components.
10.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, THE SERVICES AND THE PLATFORM ARE PROVIDED "AS IS" AND "AS AVAILABLE," AND ADM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. ADM DOES NOT WARRANT ANY SPECIFIC REVENUE, FILL RATE, OR OTHER QUANTITATIVE OUTCOME.
11. Indemnification.
11.1 Mutual Indemnification. Each Party (the "Indemnifying Party") will defend, indemnify, and hold harmless the other Party and its officers, directors, employees, and agents (collectively, the "Indemnified Parties") from and against any and all third-party claims, suits, or proceedings, and any resulting damages, losses, liabilities, settlement amounts, and reasonable attorneys' fees (collectively, "Losses"), to the extent arising out of or relating to: (a) the Indemnifying Party's breach of any representation, warranty, or covenant in this Agreement; (b) the Indemnifying Party's negligence or willful misconduct; or (c) the Indemnifying Party's violation of Applicable Law.
11.2 Publisher-Specific Indemnification. Publisher will additionally defend, indemnify, and hold harmless the ADM Indemnified Parties from and against any Losses arising out of or relating to: (a) the editorial content of any Publisher Property (other than ads served by ADM); (b) any violation of the CAN-SPAM Act or similar commercial-email laws by Publisher; and (c) any claim that a Subscriber did not consent to receive commercial email communications from the applicable Publisher Property.
11.3 ADM-Specific Indemnification. ADM will additionally defend, indemnify, and hold harmless the Publisher Indemnified Parties from and against any Losses arising out of or relating to any claim that an ad served by ADM (other than a Publisher Self-Sold Ad) infringes any third-party intellectual property right or violates Applicable Law.
11.4 Procedure. The Indemnified Parties will (a) provide the Indemnifying Party with prompt written notice of any claim for which indemnification is sought (provided that failure to provide prompt notice will not relieve the Indemnifying Party of its obligations except to the extent materially prejudiced thereby), (b) give the Indemnifying Party sole control over the defense and settlement of the claim (provided that any settlement requiring an admission of liability or an affirmative obligation of the Indemnified Parties requires the Indemnified Parties' prior written consent, not to be unreasonably withheld), and (c) reasonably cooperate in the defense at the Indemnifying Party's expense.
12. Limitation of Liability.
12.1 Cap on Liability. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BETWEEN THE PARTIES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12.2 Exclusion of Consequential Damages. EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, LOSS OF GOODWILL, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 "Excluded Claims" means (a) breaches of Section 13 (Confidentiality); (b) either Party's indemnification obligations under Section 11; (c) either Party's willful misconduct or fraud; and (d) Publisher's payment obligations under Section 6.
13. Confidentiality.
13.1 Definition. "Confidential Information" means any non-public information disclosed by one Party (the "Disclosing Party") to the other (the "Receiving Party"), whether in writing, orally, or otherwise, that is marked or identified as confidential or that a reasonable person would understand to be confidential under the circumstances, including without limitation business plans, pricing, customer information, technical information, the terms of this Agreement, and performance data. Confidential Information does not include information that (a) is or becomes publicly available other than through a breach of this Agreement, (b) was lawfully in the Receiving Party's possession without confidentiality obligations prior to disclosure, (c) is lawfully obtained from a third party without restriction, or (d) is independently developed without use of or reference to the Disclosing Party's Confidential Information.
13.2 Obligations. The Receiving Party will (a) use the Confidential Information only for purposes of performing under this Agreement, (b) protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of similar nature (and in no event less than reasonable care), and (c) limit disclosure to its employees, contractors, and advisors who have a need to know and who are bound by confidentiality obligations at least as protective as those set forth herein.
13.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information to the extent required by law or legal process, provided (where legally permitted) it gives the Disclosing Party prompt written notice and reasonable cooperation in seeking a protective order.
13.4 Survival. The obligations in this Section 13 survive termination of this Agreement for a period of two (2) years, except with respect to trade secrets, which remain confidential for so long as they qualify as such under Applicable Law.
14. Intellectual Property.
14.1 Ownership. Each Party retains all right, title, and interest in and to its own pre-existing intellectual property and any intellectual property it develops outside the scope of this Agreement. Nothing in this Agreement transfers ownership of either Party's intellectual property to the other, except as expressly set forth herein.
14.2 ADM IP. As between the Parties, ADM owns all right, title, and interest in and to the Platform, the Ad Tags, the Services, and all related technology, software, documentation, reports, improvements, and derivative works (collectively, "ADM IP"). ADM grants Publisher a limited, non-exclusive, non-transferable, revocable license during the Term to use the ADM IP solely as necessary to receive the Services.
14.3 Publisher IP. As between the Parties, Publisher owns all right, title, and interest in and to the Publisher Properties, the editorial content therein, its trademarks and brand assets, and its Subscriber relationships (collectively, "Publisher IP"). Publisher grants ADM a limited, non-exclusive, non-transferable, revocable license during the Term to use the Publisher IP solely as necessary to provide the Services.
14.4 Promotional Use. ADM may, during the Term, identify Publisher as a client of ADM and use Publisher's name and logo in promotional collateral and on ADM's website, subject to any reasonable brand-usage guidelines provided by Publisher in writing. Publisher may revoke this promotional right at any time upon written notice.
14.5 Feedback. If either Party provides suggestions, comments, or other feedback relating to the other Party's products or services, the other Party may use such feedback without restriction or obligation.
15. Insurance.
15.1 Insurance Coverage. Each Party will maintain, during the Term and for at least one (1) year thereafter, commercially reasonable insurance coverage appropriate to its business, including without limitation commercial general liability, cyber/technology liability, and professional liability (errors & omissions) insurance, in amounts consistent with industry practice for companies of similar size and scope. Upon written request, each Party will provide the other with a certificate of insurance evidencing the required coverage.
16. Assignment.
16.1 Assignment. Neither Party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other Party; provided, however, that either Party may assign this Agreement without such consent to a successor in interest in connection with a merger, consolidation, reorganization, or sale of all or substantially all of the assets of such Party, so long as the successor agrees in writing to be bound by this Agreement. Any purported assignment in violation of this Section is void.
17. Governing Law.
17.1 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Texas, without giving effect to its conflicts-of-law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
18. Dispute Resolution.
18.1 Good-Faith Negotiation. The Parties will first attempt in good faith to resolve any dispute arising out of or relating to this Agreement through informal negotiation between senior executives with authority to resolve the dispute for a period of at least thirty (30) days before initiating formal proceedings.
18.2 Binding Arbitration. Any dispute not resolved through negotiation will be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitration will be conducted before a single arbitrator in Dallas, Texas in the English language. Judgment on the award may be entered in any court of competent jurisdiction. The prevailing Party is entitled to recover its reasonable attorneys' fees and costs.
18.3 Equitable Relief. Notwithstanding the foregoing, either Party may seek injunctive or other equitable relief from any court of competent jurisdiction to protect its intellectual property or Confidential Information.
18.4 Waiver of Class Action Participation. The Parties agree that all claims between the Parties shall be brought solely in the Party's individual capacity and not as a plaintiff or class member in any purported class or representative proceeding.
19. Force Majeure.
19.1 Neither Party will be liable for any delay or failure to perform under this Agreement (other than payment obligations) to the extent caused by events beyond its reasonable control, including acts of God, natural disasters, war, terrorism, civil unrest, labor disputes, governmental actions, epidemics or pandemics, failures of third-party telecommunications or cloud-infrastructure providers, and internet outages. The affected Party will use commercially reasonable efforts to resume performance as soon as practicable. If a force-majeure event continues for more than sixty (60) days, either Party may terminate this Agreement upon written notice.
20. Severability.
20.1 If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision will be modified to the minimum extent necessary to render it enforceable, and the remaining provisions will continue in full force and effect.
21. Entire Agreement; Amendment.
21.1 Entire Agreement. This Agreement, together with the IO and the Exhibits hereto, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, relating thereto.
21.2 Amendment. This Agreement may be amended, modified, or supplemented only by a written instrument signed by authorized representatives of both Parties. No waiver of any provision of this Agreement will be effective unless in writing and signed by the waiving Party, and no single or partial waiver will constitute a continuing waiver.
22. Notices.
22.1 All notices required or permitted under this Agreement must be in writing and will be deemed given (a) when delivered personally, (b) one (1) business day after deposit with a reputable overnight courier (with tracking), (c) three (3) business days after being sent by certified or registered U.S. mail (return receipt requested), or (d) upon written confirmation of receipt when sent by email to the addresses designated below.
If to ADM, to the attention of:
Attn: Legal Officer
Ads Marketplace, LLC
30401 Agoura Road, Suite 100
Agoura Hills, CA 91301
Email: legal@adsmarketplace.ai
If to Publisher, to the person listed as the contact person and at the address listed on the IO or in the absence of any such designation, then to Publisher's registered agent or principal place of business.
23. Independent Contractors.
23.1 The Parties are independent contractors. Nothing in this Agreement creates any partnership, joint venture, agency, franchise, employment, or fiduciary relationship between the Parties. Neither Party has authority to bind the other or to incur any obligation on the other's behalf.
24. Counterparts; Electronic Signatures.
24.1 This Agreement may be executed in one or more counterparts, each of which is deemed an original and all of which together constitute one and the same instrument. Signatures transmitted by email in PDF form or executed via a recognized electronic-signature platform (such as DocuSign) have the same legal effect as original handwritten signatures.
The Parties have executed this Terms and Conditions to the Ads Marketplace Publisher Platform Insertion Order to be effective as of the Effective Date set forth on the IO.
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Exhibit A --- Data Usage Policy
This Data Usage Policy (the "Policy") describes the framework under which Ads Marketplace collects and uses data in connection with providing the Services. This Policy supplements, and is subject to, Section 8 of the Agreement. In the event of any conflict between this Policy and the Agreement, the Agreement controls.
A.1 Data Collected
In connection with the Services, ADM may collect the following categories of data on an anonymized and aggregated basis: (i) ad-performance data (impressions, clicks, viewability, fill rate, and similar metrics); (ii) ad-interaction data (anonymized engagement signals associated with served advertisements); (iii) technical device and browser metadata (user-agent strings, general geographic region, time zone, and similar non-identifying attributes); (iv) campaign-level and newsletter-level reporting data; and (v) invalid-traffic and fraud-detection signals.
A.2 Purposes of Use
ADM uses the data described in Section A.1 solely for the following purposes: (i) operating, optimizing, and improving the Platform and the Services; (ii) producing performance reports for Publisher and internal analytics for ADM; (iii) detecting and preventing fraud, abuse, invalid traffic, and deliverability issues; (iv) meeting ADM's contractual and legal obligations to advertisers and demand partners; and (v) complying with Applicable Law.
A.3 Data Not Collected or Shared
ADM does not, and will not: (i) sell, license, or rent Subscriber Data to third parties for such third parties' independent marketing purposes; (ii) build subscriber-level profiles that are combined across publishers or shared between publishers; (iii) engage in cross-publisher data sharing that associates activity of a given individual across multiple publishers; (iv) operate as an email service provider (ESP) or send commercial email communications on behalf of Publisher; or (v) create a persistent identifier for any individual Subscriber for use outside of the Services provided to Publisher under the Agreement.
A.4 Publisher Subscriber Data
As between the Parties, Publisher owns all Subscriber Data associated with the Publisher Properties. ADM's access to Subscriber Data is limited to what is strictly necessary to perform the Services and is governed by the Agreement.
A.5 Data Retention
ADM retains anonymized and aggregated data for as long as reasonably necessary to fulfill the purposes set forth in Section A.2, subject to Applicable Law. Any non-aggregated operational data attributable to Publisher will be deleted or anonymized following termination of the Agreement, subject to Section 8.4 of the Agreement.
A.6 Publisher Deletion Requests
Publisher may submit a written request for deletion or anonymization of remaining non-aggregated data attributable to the Publisher Properties following termination of the Agreement. ADM will honor such request within a commercially reasonable time, subject to any retention obligations required by Applicable Law or for ADM's legal, accounting, or back-up purposes.
A.7 Updates to This Policy
ADM may update this Policy from time to time to reflect changes in its practices or in Applicable Law. Material changes that adversely affect Publisher will not be effective with respect to Publisher without Publisher's prior written consent (email sufficient), which consent will not be unreasonably withheld.