These Adserver Exchange Advertising Terms ("Terms") are entered into by "Adserver Exchange" and the entity executing these Terms or that accepts these Terms electronically ("Customer"). These Terms govern Customer's participation in Adserver Exchange's advertising programs and services. In consideration of the foregoing, the parties agree as follows:
Customer authorizes Adserver Exchange and its affiliates to place Customer's advertising materials and related technology on any content or property provided by Adserver Exchange or its affiliates on behalf of itself or, as applicable, a third party ("Partner"). Customer is solely responsible for all: (i) Creative, (ii) Ad trafficking or targeting decisions (e.g., keywords) ("Targets"), (iii) Properties to which Creative directs viewers (e.g., landing pages) along with the related URLs and redirects ("Destinations") and (iv) services and products advertised on Destinations (collectively, "Services"). The Program is an advertising platform on which Customer authorizes Adserver Exchange or its affiliates to use automated tools to format Ads.
Customer will not provide Ads containing malware, spyware or any other malicious code or knowingly breach or circumvent any Program security measure.
Unless a Policy, the Program user interface or an agreement referencing these Terms (an "IO") provides otherwise, either party may cancel any Ad at any time before the earlier of Ad auction or placement. Cancelled Ads will generally cease serving within 8 business hours or as described in a Policy or IO. Customer must effect cancellation of Ads online through Customer's account("Ad Cancellation Process").Adserver Exchange will not be bound by a Customer provided IO.
Customer warrants that (a) it holds, and hereby grants Adserver Exchange, its affiliates and Partners, the rights in Creative, Destinations and Targets for Adserver Exchange, its affiliates and Partners to operate the Programs and (b) all information and authorizations provided by Customer are complete, correct and current. Customer authorizes Adserver Exchange and its affiliates to automate retrieval and analysis of Destinations for the purposes of the Programs. Customer warrants that it is authorized to act on behalf of, and has bound to these Terms, third parties, if any, for which Customer advertises in connection with these Terms ("Advertiser").
Customer will pay all charges incurred in connection with the Program, in immediately available funds or as otherwise approved by Adserver Exchange, within a commercially reasonable time period specified by Adserver Exchange.
Disclaimers. EACH PARTY ON BEHALF OF ITSELF AND ITS AFFILIATES DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAMS AND Adserver Exchange, ITS AFFILIATES, AND PARTNER PROPERTIES ARE PROVIDED "AS IS" AND AT CUSTOMER'S AND ADVERTISER'S OPTION AND RISK AND NONE OF Adserver Exchange, ITS AFFILIATES OR Adserver Exchange'S PARTNERS MAKE ANY GUARANTEE IN CONNECTION WITH THE PROGRAMS OR PROGRAM RESULTS.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (a) NO PARTY OR ITS AFFILIATES MAY BE HELD LIABLE UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THESE TERMS FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY; AND (b) OTHER THAN CUSTOMER'S PAYMENT OBLIGATIONS UNDER THESE TERMS, NO PARTY OR ITS AFFILIATES MAY BE HELD LIABLE FOR DAMAGES UNDER THESE TERMS OR ARISING OUT OF OR RELATED TO PERFORMANCE OF THESE TERMS FOR ANY GIVEN EVENT OR SERIES OF CONNECTED EVENTS IN THE AGGREGATE OF MORE THAN THE AMOUNT PAYABLE TO Adserver Exchange BY CUSTOMER UNDER THE TERMS IN THE THIRTY DAYS BEFORE THE DATE OF THE ACTIVITY FIRST GIVING RISE TO THE CLAIM.
Indemnification. Customer will defend, indemnify and hold harmless Adserver Exchange, its Partners, agents, affiliates, and licensors from any third party claim or liability arising out of or related to Targets, Creative, Destinations, Services, Use and breach of these Terms by Customer. Partners are intended third party beneficiaries of this Section.
Term. Adserver Exchange may add to, delete from or modify these Terms at any time without liability. Customer should look at these Terms regularly. The changes to the Terms will not apply retroactively and will become effective 7 days after posting. Either party may terminate these Terms at any time with notice to the other party. The parties agree to waive any provisions of local law which may limit, restrict, require a court order, or otherwise inhibit Adserver Exchange's ability to terminate these Terms at its sole discretion. Adserver Exchange may suspend Customer's ability to participate in the Programs at any time. In all cases, the running of any Customer campaigns after termination is in Adserver Exchange's sole discretion.
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS AND THE FAQ BEFORE REGISTERING FOR THE Adserver Exchange PUBLISHER ONLINE PROGRAM. PARTICIPATION IN THE Adserver Exchange PUBLISHER ONLINE PROGRAM INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS.
This agreement ("Agreement") between You and Adserver Exchange consists of these Adserver Exchange Online Program (the "Program") Standard Terms and Conditions ("Terms and Conditions"). "You" or "Publisher" means any entity identified in an enrollment form submitted by the same or affiliated persons, and/or any agency or network acting on its (or their) behalf, which shall also be bound by the terms of this Agreement.
All Ads shall be grouped by Adserver Exchange and displayed to end users of the Property(ies) as ad units (such groups of Ads referred to as "Ad Units") in standard formats as offered generally by Adserver Exchange from time to time, as may be described in the FAQ. You may select a format approved by Adserver Exchange for the display of Ad Units in connection with the Property(ies), but You acknowledge and agree that Ads : (i) shall only be displayed in connection with the Property(ies), each of which is subject to review and approval by Adserver Exchange in its discretion at any time; and (ii) shall be subject to the placement guidelines set forth herein.
You agree not to display on the same Web page in connection with which any Ad Unit is displayed (a "Serviced Page") any advertisement(s) or content that an end user of Your Property(ies) would reasonably confuse with a Adserver Exchange advertisement or otherwise associate with Adserver Exchange. Certain Adserver Exchange services available as part of the Program may contain filtering capability that You may access through Your account. However, if You elect to enable any such filters, You acknowledge and agree that: (i) it is Your responsibility to enable such features in accordance with the specifications provided by Adserver Exchange, and (ii) Adserver Exchange does not and cannot commit that all results will be limited to results elected by enabling such filter(s).
You agree to direct to Adserver Exchange, and not to any advertiser, any communication regarding any Ad(s) displayed in connection with Your Property(ies).
You are solely responsible for the Property(ies), including all content and materials, maintenance and operation thereof, the proper implementation of Adserver Exchange's specifications, and adherence to the terms of this Agreement, including compliance with the Program Policies. Adserver Exchange reserves the right to investigate, at its own discretion, any activity that may violate this Agreement, including but not limited to any use of a software application to access Ads, or any engagement in any activity prohibited by this Agreement. Adserver Exchange is not responsible for anything related to Your Property(ies), including without limitation the receipt of queries from end users of Your Property(ies) or the transmission of data between Your Property(ies) and Adserver Exchange.
You shall not, and shall not authorize or encourage any third party to: (i) directly or indirectly generate queries, or impressions of or clicks on any Ad through any automated, deceptive, fraudulent or other invalid means, including but not limited to through repeated manual clicks, the use of robots or other automated query tools and/or computer generated search requests, and/or the unauthorized use of other search engine optimization services and/or software; (ii) edit, modify, filter, truncate or change the order of the information contained in any Ad or Ad Unit, or remove, obscure or minimize any Ad or Ad Unit in any way without authorization from Adserver Exchange; (iii) frame, minimize, remove or otherwise inhibit the full and complete display of any Web page accessed by an end user after clicking on any part of an Ad ("Advertiser Page"); (iv) redirect an end user away from any Advertiser Page; provide a version of the Advertiser Page that is different from the page an end user would access by going directly to the Advertiser Page; (v) display any Ad(s) on any Web page or any Web site that contains any pornographic, hate-related, violent, or illegal content; (vi) directly or indirectly access, launch, and/or activate Ads through or from, or otherwise incorporate the Ads in, any software application, Web site, or other means other than Your Property(ies), and then only to the extent expressly permitted by this Agreement; (vii) "crawl", "spider", index or in any non-transitory manner store or cache information obtained from any Ads, or any part, copy, or derivative thereto; (viii) act in any way that violates any Program Policies posted on the Adserver Exchange Web Site, as may be revised from time to time, or any other agreement between You and Adserver Exchange(including without limitation the Adserver Exchange Advertising program terms); (ix) disseminate malware; (x) create a new account to use the Program after Adserver Exchange has terminated this Agreement with You as a result of your breach of this Agreement; or (xi) engage in any action or practice that reflects poorly on Adserver Exchange or otherwise disparages or devalues Adserver Exchange’s reputation or goodwill. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement and that we may pursue any and all applicable legal and equitable remedies against You, including an immediate suspension of Your account or termination of this Agreement, and the pursuit of all available civil or criminal remedies.
You may terminate this Agreement with or without cause at any time by sending written notice of your desire to cancel Your participation in the Program to our support desk. This Agreement will be deemed terminated within ten (10) business days of Adserver Exchange's receipt of Your notice. Adserver Exchange may investigate any activity that may violate this Agreement. Adserver Exchange may at any time, in its sole discretion, terminate all or part of the Program, terminate this Agreement, or suspend or terminate the participation of any Property in all or part of the Program for any reason. In addition, Adserver Exchange reserves the right to terminate without notice any account that has not generated a sufficient number of valid clicks on Ads or valid impressions of Ads (in each case as measured by Adserver Exchange) for a period of two (6) months or more.
You agree not to disclose Adserver Exchange Confidential Information without Adserver Exchange's prior written consent. "Adserver Exchange Confidential Information" includes without limitation: (a) all Adserver Exchange software, technology, programming, specifications, materials, guidelines and documentation relating to the Program; (b) click-through rates or other statistics relating to Property performance in the Program provided to You by Adserver Exchange; and (c) any other information designated in writing by Adserver Exchange as "Confidential" or an equivalent designation. However, You may accurately disclose the amount of Adserver Exchange’s gross payments to You pursuant to the Program.
Adserver Exchange makes no guarantee regarding the level of impressions of Ads or clicks on any Ad, the timing of delivery of such impressions and/or clicks or the amount of any payment to be made to You under this Agreement. In addition, for the avoidance of doubt, Adserver Exchange does not guarantee the Program will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of Your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond Adserver Exchange’s control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where Adserver Exchange(or its wholly owned subsidiaries) or Your servers are located or co-located.
Adserver Exchange MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE.
EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE PROGRAM, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND (ii) Adserver Exchange'S AGGREGATE LIABILITY TO PUBLISHER UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY Adserver Exchange TO PUBLISHER DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties. Without limiting the foregoing and except for payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
You shall receive a payment related to the number of valid clicks on Ads as determined by Adserver Exchange for its participants in the Program. In the event the Agreement is terminated, Adserver Exchange shall pay Your earned balance to You within approximately ninety (90) days after the end of the calendar month in which the Agreement is terminated by You or by Adserver Exchange. Notwithstanding the foregoing, Adserver Exchange shall not be liable for any payment based on any amounts which result from invalid queries or invalid clicks or impressions on Ads generated by any person, bot, automated program or similar device, as reasonably determined by Adserver Exchange, including without limitation through any clicks or impressions (i) originating from Your IP addresses or computers under Your control, (ii) solicited by payment of money, false representation, or request for end users to click on Ads, or (iii) solicited by payment of money, false representation or as a result of any breach of this Agreement by You for any applicable pay period. Adserver Exchange reserves the right to withhold payment or charge back Your account due to any of the foregoing or any breach of this Agreement by You, pending Adserver Exchange's reasonable investigation of any of the foregoing or any breach of this Agreement by You, or in the event that an advertiser whose Ads are displayed in connection with Your Property(ies) defaults on payment for such Ads to Adserver Exchange. To ensure proper payment, You are solely responsible for providing and maintaining accurate address and other contact information as well as payment information associated with Your account. You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your participation in the Program. Adserver Exchange may change its pricing and/or payment structure at any time. If You dispute any payment made under the Program, You must notify Adserver Exchange in writing within thirty (30) days of any such payment; failure to so notify Adserver Exchange shall result in the waiver by You of any claim relating to any such disputed payment.
You represent and warrant that (a) all of the information provided by You to Adserver Exchange to enroll in the Program is correct and current; (b) You are the owner of each Property or You are legally authorized to act on behalf of the owner of such Property(ies) for the purposes of this Agreement and the Program; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. You further represent and warrant that each Property and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content.
You agree to indemnify, defend and hold Adserver Exchange, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the Program, the Property(ies), and/or Your breach of any term of this Agreement.
You acknowledge that Adserver Exchange owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Program (includingAdserver Exchange's ad serving technology), and that You will not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any Adserver Exchange services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto.