Addendum To AAAA/IAB Standard Terms And Conditions For Internet Advertising For Media Buys One Year Or Less (Version 3.0) (U.S. Media Buys Only)
These additional media buys terms and conditions (“IAB Addendum”) amend the Standard IAB Terms and Conditions For Internet Advertising For Media Buys One Year Or Less (Version 3.0) (“Standard IAB Terms”) and govern any placement of advertisements on any digital media properties as sold by Media Company to Advertiser pursuant to an Insertion Order (“IO”) signed by Media Company and Advertiser/Agency of Advertiser. This IAB Addendum is deemed to be incorporated by reference into the corresponding IO. Media Company and Advertiser/Agency of Advertiser agree to be bound by the IO, and the Standard IAB Terms as modified by this IAB Addendum (collectively, “Agreement”). The Agreement supersedes and replaces all prior agreements, discussions, and representations on the subject matter discussed herein, all of which are merged into the Agreement. In the event of conflict between the Standard IAB Terms, this IAB Addendum and/or any other terms included or referenced in the applicable IO, this IAB Addendum shall control, unless otherwise expressly noted in the IO. Capitalized terms used and not otherwise defined in IAB Addendum shall have the meanings set forth in the Standard IAB Terms.
The Standard IAB Terms are amended and/or supplemented as follows:
1. If an Agency enters into this Agreement on behalf of an Advertiser, Agency represents and warrants that: (i) Agency is currently an authorized agent of the Advertiser and is authorized to enter into this Agreement and the Agreement is fully binding on the Advertiser as if the Advertiser had signed the Agreement itself. In the event that an IO is entered directly into between the Advertiser and Media Company, all references to “Agency” in its role as an agent of the Advertisers shall be deemed to have no effect on Advertiser (e.g., Section III.c, X.c. and XII.h of the Standard IAB Terms shall not apply) and all references to “Agency” that are applicable to Advertiser’s activities pursuant to an IO shall be deemed to refer to Advertiser (e.g., Section III.a, V.b of the Standard IAB Terms).
2. The IAB Addendum is subject to change from time to time at Media Company’s sole discretion, provided that such changes shall apply solely to IOs, or amendments thereto, entered into between the Media Company and Advertiser/Agency of Advertiser after the effective date of such change/amendment.
3. Definitions:
The following defined terms in the Standard IAB Terms are amended as follows:
“Advertising Materials” means visual assets, images, graphics, artwork, photographs, text, multimedia files, ad copy, active URLs for Ads, video or software code for Ads, logos, trademarks, servicemarks, recordings, or any other intellectual property or content provided by Advertiser or Agency on behalf of the Advertiser.
“Editorial Adjacency Guidelines” includes specifications and guidelines that Advertiser provides and which govern the placement of Ads in connection with an applicable IO.
“IO” means a mutually agreed insertion order that incorporates the IAB Addendum, under which Media Company will deliver Ads on Sites for the benefit of Advertiser.
“Media Company Properties” are websites and mobile applications specified on an IO that are owned, operated, or controlled by Media Company.
“Network Properties” means websites and mobile applications specified on an IO are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads.
“Policies” include terms and conditions and the privacy policy linked at the bottom of Media Company Properties, or as made available on Network Properties, governing the use of Network Properties.
The following definitions are hereby added to the Standard IAB Terms:
“Branded Content” means content, creatives, materials, software, technology created, used or produced by Media Company under Media Company branding.
“CPE Deliverables” means Deliverables sold on a cost per engagement basis.
“CPE EHR Engagement” means EHR engagement based on copay enrollment and/or prior authorization enrollment.
“CPS” means Deliverables sold on a cost per send basis.
“CPUHCP” means the number of unique individuals in a month based on their email opens, email clicks or sessions on page.
“Custom Materials” includes any content, creatives, materials, software, technology created, specifically for the Advertiser by Media Company, or by a third party on behalf of and engaged by Media Company, in connection with any applicable IO.
“Engagement” for the purposes of CPE Deliverables means email opens, marketing driver clicks, and sessions on page.
“EHR CPS” means the number of sends of the co-pay card from the EHR platform to the pharmacy.
“High Value Engagement” means Engagements which are equal to or more than fifteen (15) seconds.
“Media Company Advertising Materials” includes all Branded, Custom, Sponsored Content, or native advertising.
“Sponsored Content” means any content, creatives, materials, software, technology that is sponsored by Advertiser but created by Media Company in connection with an IO.
“Video CPE” means engagement which is counted from the start of video play.
4. The last sentence of Section II.a is deleted and replaced with the following: “For any exception to be deemed approved by the Agency, it/they will be noted in an IO, and/or in an updated IO, prior to any implementation.”
5. In connection with Section II.b, the number 10 is replaced with the number 30 in the first and second sentences.
6. The first sentence of Section III.a is deleted and replaced with the following: “The initial invoice will be sent by Media Company within 30 days of the completion of the first month’s delivery.”
7. The following is added to Section III.b: “Notwithstanding the foregoing, in the event of non-payment to Media Company, Media Company may at its sole discretion either: (i) seek payment directly from Advertiser, without notice to Agency, if Media Company has not received payment within 60 days from the delivery of the invoice to Agency; or (ii) offset amounts due to Media Company against any amounts due from Media Company to Advertiser/ Agency on behalf of Advertiser.”
8. The following is added to the end of Section III.c: “Notwithstanding anything to the contrary contained herein, Media Company reserves the rights to request additional assurances such as letters of liabilities, or upfront payment from Advertiser or Agency of Advertiser, in its sole discretion.”
9. The following is added to Section III: “III.d. Suspension for Non-Payment. Media Company reserves the right to suspend any undelivered or partially delivered IO for the Advertiser without prior notice to Agency or Advertiser if Agency fails to pay Fees invoiced by Media Company on any delivered IO for the Advertiser within sixty (60) days following the payment due date.”
10. The following is added to Section IV:
Section IV.d. “d. Viewability. Media Company shall guarantee viewability as follows:
i. Standard Ads Requirement: 50% of pixels in view for one continuous second for display and 100% of pixels in view for two consecutive seconds for video with the player default set to sound on of the Ad impressions at or above 70% of viewability threshold.
ii. Pixel Requirement: Greater than or equal to 50% of the pixels in the advertisement were on an in-focus browser tab on the viewable space of the browser page.
iii. Time Requirement: The time the pixel requirement is met was greater than or equal to one continuous second, post ad render.
iv. Threshold: In the instances where monthly campaign-level impressions served by the Media Company do not meet the 70% threshold, Agency reserves the right to request a makegood equal to this difference of non-viewable impressions.
v. Native ads are subject to these measurement requirements if such measurement capability is possible.
vi. Exceptions: Unless otherwise specifically set forth in the IO, the following exceptions are made:
1. Over-The-Top impressions will count as 100% viewable.
2. Sponsorship-type buys shall be based on percentages as mutually agreed to, but in no event below 60%.
3. Action based buy types (e.g., CPUV, CPC) will supersede viewability.
vii. Delivery: Agency reserves the right to roll under-delivery of planned monthly spend to the next month or to actualize the cost of delivery only during month-end actualizations. Any monthly over-delivery is considered added value to the campaign and will not count towards overall guaranteed delivery. Agency will select and use a third-party ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines to track delivery, including for media served by Media Company when tracking pixels are implemented. Unless otherwise specified in an IO, Media Company will invoice based on delivery tracked through the third-party ad server.”
Section IV.e. “e. Frequency Capping. Unless a frequency cap is specifically agreed to in the IO, Media Company will not place a default frequency cap on impressions. Where frequency is more than the agreed to frequency cap, Agency shall reconcile data and request invoices detailing impressions above the frequency cap as added value. Additionally, Agency will be entitled to a makegood or refund for such impressions above the frequency cap.”
Section IV.f. “f. API Reporting. If Media Company has a reporting Application Process Interface (“API”), Media Company shall provide daily access and credentials to the reporting API to integrate into the Agency’s or Advertiser’s reporting platform. If Media Company does not have a reporting API, Media Company will populate Agency’s reporting template with campaign data in the time frame agreed to in the IO. If Media Company is unable to provide reporting by the above timeframe, Media Company shall notify Agency and will mutually agree to a timeframe to receive such API reporting.”
11. Section V.c is deleted and replaced with the following: “c. Short Rates. Short rates will apply to canceled buys based on Media Company’s standard rate card for the related inventory.”
12. The second sentence of Section VI.b is deleted and replaced with the following: “If no makegood can be agreed upon, Media Company will invoice Agency only for the Deliverables actually delivered.”
13. The following is added to the end of Section IX.a: “All Advertising Material must be accompanied by a signed IO, or Haymarket must have a signed IO on file. Advertiser represents and warrants that Advertiser has the necessary rights, licenses, permissions, clearances and approvals related to Media Company’s use of the Advertising Material pursuant to the applicable IO, and that the Advertiser is solely responsible to ensure that the Advertising Material, including any Custom Material that is subject to industry specific regulations, is in compliance with all applicable laws and regulations, and shall not infringe any intellectual property or personal rights of a third party.”
14. The following is added to the end of Section IX.d: “If such Damaged Creative is not replaced prior to the scheduled start of the campaign, Advertising Materials will be deemed “late” pursuant to Section IX.b.”
15. The following is added to Section IX:
Section IX.h. “h. Media Company Advertising Materials; Custom Materials. Notwithstanding anything contained to the contrary herein, except for Advertising Material provided by Advertiser, Media Company shall own all Media Company Advertising Materials and Media Company shall retain all rights, title and ownership of intellectual property owned, created prior to the IO or independent of the IO. Advertiser shall not challenge the validity or claim any interest, or take any action that may adversely affect the validity or enforceability of any intellectual property or other proprietary right of the Media Company. Unless otherwise expressly agreed to in writing, Advertiser has no ownership in any Media Company Advertising Materials and shall not utilize, in whole or in part, any such Media Company Advertising Materials for any other promotional or advertising purposes, including for paid or programmatic. Subject to the terms and conditions of this Agreement, Advertiser grants to Media Company a fully paid-up, royalty-free, non-exclusive, non-transferable, and non-sublicensable, right and license to reproduce, publish and distribute any Advertising Materials, including all of the intellectual property contained therein in connection with the IO. Advertiser’s use of Media Company Advertising Materials shall be subject to restrictions, obligations, warranties, disclaimers, rights and license offered by Media Company, including any third party licensor, who shall remain responsible to Advertiser for such third party material.”
16. Section X.b (iii) is deleted and replaced with the following: “(iii) Advertising Material that violates any applicable law, regulation, judicial or administrative action, or the right of a Third Party, or is defamatory, libelous, slanderous, obscene or otherwise unlawful. Advertiser shall be responsible for the compliance of this Agreement by its Agency or vendors and shall indemnify Media Company against any acts, omissions, services or deliverables provided by Agency or its vendors.”
17. Section XI is deleted and replaced with the following: “Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, loss of goodwill and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages. In no event shall Media Company’s maximum aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the amount actually paid or accrued but not yet paid by Advertiser under the applicable IO during the period of six (6) months preceding the date on which the claim arises.”
18. In connection with Collected Data in Section XII.c.v, it shall include data collected by any Third Party advertising service providers, Ad verification vendors and Ad servers.
19. The following sentence is added to the end of Section XII.d.i: “Collected Data shall only be used for measuring frequency, reach and effectiveness of campaign, and for no other purpose. Notwithstanding anything contained in the contrary herein, unless otherwise agreed to in writing in advance, Advertiser shall not, either itself or cause its Agency or any third parties, to re-identify, or append or combine with other data, any data in order to determine personal information collected by Media Company pursuant to this IO or disclose any Collected Data to any third party who is not authorized to process the data pursuant to this IO. Additionally, Advertiser shall, and shall cause Agency or any authorized third party receiving campaign related data, to delete or ensure that data received in connection with the campaign from the Media Company is either aggregated or de-identified so that it is no longer tied to an individual and the Media Company.”
20. Section XIV.b is deleted and replaced with the following: “Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder without the prior written consent of the other, except that either party may otherwise assign its respective rights and transfer its respective duties to any assignee of all or substantially all of its business (or the portion thereof to which this Agreement relates) or in the event of its merger or consolidation or similar transaction.”
21. In connection with Section XIV.c “(including the Terms)” is replaced with “(including the IAB Addendum).”
22. Section XIV.d of the IAB Addendum is amended to insert “New York, without giving effect to any choice or conflicts of law principle or rule (whether of the State of New York or any other jurisdiction).” in the first fillable blank space and “federal and state courts located in the County of New York City, New York” in the second fillable blank space.
23. Section XIV.h. “h. Sustainability Policy and Supplier Code of Conduct. Media Company applies an integrity-based approach to its business and supply chain to foster a culture that encourages environmentally sustainable policies, and labor practices that mitigate the risks of employment exploitation. Media Company requires its partners to uphold similar principles and practices in its own business and supply chain. Accordingly, Advertiser/Agency of Advertiser represent(s) and warrant(s) that it maintains a program to ensure that its suppliers perform their obligations in accordance with terms that are substantially similar to the terms noted in the Haymarket Media, Inc. Supplier Code of Conduct available here: https://www.haymarketmediaus.com/haymarket-media-supplier-code-of-conduct/, incorporated herein by reference, and all applicable labor laws, including but not limited to, laws and regulation relating to health, safety and the environment, fair labor practices and unlawful discrimination.
(9.6.2024- HMI | MCG)
***