COLLECTIVE EUROPE LTD.
PUBLISHER GENERAL TERMS AND CONDITIONS
From time to time, Collective Europe Ltd (“Collective”) may submit to the party (“Publisher”) executing the accompanying master insertion order (“Master IO”) an insertion order (“Campaign IO” and, together with the Master IO, the “IO”) requesting Publisher’s delivery of an advertising campaign on behalf of Collective’s third party advertiser (the “Campaign”) on websites and/or other web based advertising inventory owned or controlled by Publisher or as otherwise indicated on the IO (the “Network”). Each IO must be accepted in writing by Collective and Publisher, and will incorporate and be governed by the terms and conditions set forth herein (these “Terms and Conditions”, and together with the IOs, this “Agreement”).
1. Network. For purposes of this Agreement, the Network includes only the properties that are specifically designated in the applicable IO (the “Designated Properties”). Collective shall not be obligated to compensate Publisher for Collective tracking pixels, web beacons or other similar software codes (the “Tags”) that Publisher places on properties other than the Designated Properties, unless otherwise agreed to in writing. Publisher and each member of its Network shall not, copy, alter, tamper or modify the Tags (and any associated unique identifiers) in any manner and shall not use the Tags as defaults with any other third party utilizing Publisher’s services. Publisher shall be liable for the acts and omissions of each member of its Network in connection with the Designated Properties.
2. Payment Terms. Payment terms will be set forth in the IO. Collective may, in its sole discretion, withhold payments until such time as its third party advertiser has paid Collective for the Campaign. Collective reserves the right to reduce any payments owed Publisher as a consequence of any offsets taken by its third party advertisers for errors in the Campaign, including, but not limited to, technical errors, tracking discrepancies and any other offsets to which Collective may be entitled in accordance with this Agreement. Collective’s proprietary reporting tool, for which Publisher will receive a login to access tracking information, will be the controlling measurement used for invoicing advertising fees owed to Publisher under an IO (the “Controlling Measurement”). The Controlling Measurement will be reconciled via Collective’s ad server. Final impressions and revenue statements are available for download by Publisher on the seventh (7th) business day following each month’s activity. Any discrepancies between the Controlling Measurement and Publisher’s impression data must be submitted to Collective in writing within thirty (30) days after receipt of the Controlling Measurement by Publisher. If the discrepancy is not resolved in writing after a good faith effort by the parties to facilitate reconciliation and invoiced within ninety (90) days of receipt of the Controlling Measurement, the Controlling Measurement shall be deemed accurate and accepted by Publisher. Collective shall not be liable for any payments for invoices received after such ninety (90) days. Collective will pay all invoices within ninety (90) days of receipt of the relevant invoice. Collective will not pay for any advertisements that are delivered before a Campaign is initiated, or after a Campaign terminates.
3. License; Ownership. Collective hereby grants Publisher a limited, non-exclusive, license to use, reproduce, display, publish, distribute and transmit the advertisements, including any content, trademarks, service marks or logos contained therein, only in connection with a Campaign and only on the Designated Properties and in the territories specified in the applicable IO. As between Collective and Publisher, Collective shall retain all rights in and to all advertising creative provided by Collective and its third party advertisers to Publisher. Publisher hereby grants Collective a limited, non-exclusive right and license during the Term (as defined below) of this Agreement to use Publisher’s name, trademarks, service marks, and logos in Collective’s marketing materials.
4. Term and Termination. The term of this Agreement will begin upon acceptance by Collective of the IO and will remain in effect until the Campaign end date specified in the IO, unless terminated earlier as provided herein (the “Term”). Either party may cancel this Agreement upon twenty four (24) hours prior written notice; provided, however, in the event that Publisher directly or indirectly places Tags on properties other than the Designated Properties, Collective may terminate this Agreement immediately without notice. Each IO shall designate the start and end date of the applicable Campaign.
5. Proprietary Information. Both parties agree to hold the terms of this Agreement and all non-public, confidential or proprietary information relating to the other party’s business (hereinafter “Proprietary Information”) that is disclosed in connection with this Agreement in strict confidence and to not use any Proprietary Information for any purpose other than in connection with the performance of its obligations hereunder, and as permitted by, this Agreement. Proprietary Information includes, without limitation, all information designated in writing as confidential by the disclosing party or that by the circumstances surrounding disclosure ought, in good faith, to be treated as proprietary or confidential.
6. Privacy; Use of Data. Both parties and each member of the Network shall comply with all applicable privacy laws, regulations and standards, including, without limitation, the General Data Protection Regulation (EU) 2016/679 (“GDPR”), and/or any corresponding or equivalent national laws, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended) or the Regulation concerning the respect for private life and the protection of Personal Data in electronic communications (Regulation on Privacy and Electronic Communications) 2017/0003 (COD), once applicable. Publisher shall either (i) implement an IAB registered CMP on the Designated Properties or its own CMP solution, which implements the IAB Transparency & Consent Framework; or (ii) work with Collective in good faith to implement Publisher’s alternative technical solution, which provides an alternative means of complying with the GDPR requirements for transparency and consent. Where Publisher is operating within the IAB Transparency & Consent Framework, it shall add Collective to its vendor list using Collective’s Vendor ID 179 and shall comply with the Transparency & Consent Framework Policies (the “Policies”). Collective shall use the data collected from Designated Properties in connection with a Campaign for the following purposes: (i) information, storage and access; (ii) personalisation; (iii) ad selection, delivery and reporting; (iv) content selection, delivery and reporting; and (v) measurement, as defined in the Policies. For the avoidance of doubt, Collective does not collect or process any information from Designated Properties in connection with a Campaign that may be used to identify an individual user of the Designated Properties in the real world (e.g. first name, last name, phone number, email address, financial account number, government-issued identifier and/or any other data used or intended to be used to directly contact or precisely locate a person).
7. Publicity. Neither party may issue any press release nor make any public announcement or marketing-related communication to third-parties discussing the parties’ relationship under this Agreement or the terms of this Agreement or referencing the other party, in each case, without obtaining the prior written consent of the other party; provided, however, that Collective may include Publisher in Collective’s publisher lists.
8. Content and Inventory. In addition to all other limitations set forth herein as to the use of Tags and/or Designated Properties, including, but not limited to, those set forth in Sections 1 and 14 hereof, Publisher acknowledges and agrees that it, and each member of its Network, shall not use the Designated Properties and/or Tags in connection with any “adult” (i.e. pornographic, obscene or sexually explicit) content or content promoting any illegal activities, including, but not limited to, discrimination, hate speech, graphic violence, gambling, firearms, tobacco, drugs or alcohol. Publisher further acknowledges and agrees that it, and each member of its Network, shall not use the Designated Properties to place Tags, or run any Campaigns, on websites listed on Collective’s blacklist of websites (“Blacklist Sites”). Collective takes no responsibility for any content residing on the Designated Properties or the Campaigns and Collective has no obligation to monitor such content on the Designated Properties and/or the Campaigns. If applicable, Publisher shall provide Collective with passback tags for the Designated Properties. Collective reserves the right, in its sole discretion, to pass back impressions (“Passback Impressions”) to Publisher that (a) Collective cannot fill on behalf of its third party advertisers or (b) Publisher serves on unapproved URLs or URLs that contain inappropriate content. Collective shall not be obligated to compensate Publisher for any Passback Impressions. In addition, Publisher acknowledges and agrees the Designated Properties will consist of viewable impressions that meet the viewability threshold set forth in the IAB’s State of Viewability Transaction 2015. Publisher will declare Collective as an authorized seller of Publisher’s advertising inventory by adding Collective’s designated ads.txt code (appnexus.com, 564, RESELLER) to the ads.txt file on Publisher’s root domain upon integration. Collective reserves the right to require the update of the Collective ads.txt code on the Designated Properties from time to time and Publisher agrees to comply with any such request by Collective.
9. Representations and Warranties. Each party represents and warrants to the other party that (a) it has all necessary rights and authority to enter into this Agreement, and to grant the rights and licenses hereunder, and (b) the execution of this Agreement and any IO, and the performance of its obligations and duties hereunder and thereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.
10. Indemnification. Each party shall defend, indemnify and hold harmless the other party and its Affiliates and Representatives (as such terms are defined by the IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0 (the “IAB Terms”), from damages, liabilities costs and expenses (including reasonable legal fees) (collectively, “Losses”) resulting from any third party claim, judgment or proceeding (collectively, “Claims”), relating to or arising out of a breach or an alleged breach of such party’s duties, obligations, or representations under this Agreement. Publisher further agrees to defend, indemnify and hold harmless Collective, its third party advertisers and their respective Affiliates and Representatives from Losses resulting from Claims relating to or arising out of: (1) the Designated Properties; (2) the products or services promoted or offered on the Designated Properties (but specifically excluding any products or services appearing in Campaigns); (3) a breach or an alleged breach by a member of its Network of any obligation, representation or warranty with respect to any Restricted Activities as set forth in Section 14; and (4) the collection and use by Publisher, and any member of the Network, of personal data collected from users on the Designated Properties. If any action will be brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (the “Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of all Claims. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party, which such consent shall not be unreasonably delayed, conditioned or withheld.
11. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES AND EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTHING HEREIN SHALL EXCLUDE OR LIMIT A PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY DUE TO ITS NEGLIGENCE OR ANY LIABILITY, WHICH IS DUE TO ITS FRAUD, OR ANY OTHER LIABILITY, WHICH IT IS NOT PERMITTED TO EXCLUDE OR LIMIT AS A MATTER OF LAW. Excluding the parties’ obligations under Sections 1 and 10 of this Agreement, or intentional misconduct by the parties, in no event shall either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including, without limitation, lost opportunity, lost profits or revenue, costs of procurement of substitute goods or services, business interruption, loss of goodwill or any other intangible benefit, even if such party has been advised of the possibility of such damages.
12. Notice. Any notice required to be delivered hereunder will be deemed received one (1) business day if sent by overnight courier service and immediately if sent by email. All notices to Collective shall be sent to the contact as noted in the IO with a copy to email@example.com. All notices to Publisher shall be sent to the address specified on the IO.
13. Miscellaneous. The relationship of the parties is one of independent contractors. This Agreement may not be modified or altered except by a written instrument duly executed by both parties. This Agreement sets forth the entire agreement of the parties as to its subject matter and supersedes all prior agreements, negotiations, representations and promises (whether written or oral) between them with respect to its subject matter. Neither party shall assign, sell or transfer this agreement without the prior, written approval of the other party, except that Collective may freely assign this Agreement in the event of a sale, merger or acquisition. This Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and assigns. A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights. Sections 1, 3, 5, 6, 7, 8, 10, 11, 12 and this Section 13 shall survive termination or expiry of this Agreement. This Agreement, and any and all disputes directly or indirectly arising out of or relating to this Agreement, will be governed by and construed in accordance with the laws of England, without reference to the choice of law rules thereof. Each of the parties hereby irrevocably consents and submits to the exclusive jurisdiction of the English courts for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts. In the event of any such dispute, the prevailing party shall be entitled to recovery of its costs, including, but not limited to, its reasonable attorneys’ fees from the losing party. In the event of any inconsistency between the terms of an accepted IO and these Terms and Conditions, the terms of the accepted IO shall prevail.
14. Restricted Activities. Publisher represents and warrants that the Designated Properties on which the Campaigns will appear in connection with this Agreement shall not contain spyware applications, adware applications, or drive-by download applications. Additionally, Publisher represents and warrants that the Designated Properties on which Campaigns will appear in connection with this IO shall not contain viruses, trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other malicious computer programming routines that are intended to, or have the capacity to, damage, interfere with, intercept or expropriate any system, data, or personal information. Publisher will also take proactive steps to: (i) monitor and prevent spyware, adware or any similar agents from calling Campaigns; and (ii) prevent “forced visit” or fraudulent traffic as such terms are understood in the digital advertising industry. For purposes of this Agreement, fraudulent traffic may involve, without limitation, misleading or fraudulent domain representation, integration into software applications of any kind, including toolbars, the placement of tags on non-content based websites and buying practices which may lead to botnet or other non-human traffic such as iFrame stuffing, ad stacking or ad injecting. If in Collective’s sole discretion, Publisher is found in breach of this Section 14, in addition to other rights contained herein, Collective shall have the right to: (i) immediately terminate this Agreement; (ii) setoff, or receive a credit for, any amount billed by Publisher to Collective for the portion of the Campaign affected by the breach of this Section 14; and/or (iii) an immediate refund of any amounts paid for the portion of the Campaign affected by such violation.