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AOL Advertising Inc. / IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (v 2.0) with Inclusive Addendum
1. Terms and Conditions. The IO, this Addendum and all insertion orders hereunder will be governed by Version 2.0 of the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, as jointly published by the AAAA and the IAB and released on April 29, 2002 (the "Standard Terms"). For purposes of this IO, AOL Advertising Inc. will mean AOL Advertising Inc. Inc., AOL LLC, and all AOL affiliates worldwide (“ AOL .”) This Insertion Order will be governed by the laws of the State of New York. If an Advertiser is signing this Insertion Order with no Agency representation, all references in this Insertion Order and the Standard Terms to "Agency" will be deemed to mean Advertiser. All impressions specified in this Insertion Order will be delivered through the AOL Network, which is defined as any web site, product, service, or site owned, operated, distributed, or authorized to be distributed by or through AOL LLC, AOL Advertising Inc. or any AOL affiliate worldwide, including any third party interactive site(s) on which AOL distributes or is authorized to distribute Advertisements.
ADDENDUM TO INSERTION ORDER
2. Performance Advertising Terms. With respect to those line items in the media plan attached and incorporated by reference into the IO (the "Media Plan") that reference the placement of Performance Ads (defined below) using the AdLearn service of AOL and the placement of advertising creative within the AOL Performance Network ("AOLPN"), the following terms will apply:
(a) "Action" means [If Applicable, will be defined on a campaign-by-campaign basis].
(b) "Performance Ads" means an advertising creative served by AOL using the AdLearn service on behalf of Advertiser.
(c) Notwithstanding the budget set forth on the Media Plan, both parties agree that AOL may allocate budget among or between campaigns as it deems appropriate, in its sole discretion.
(d) AOL may choose, in its sole discretion, the medium (Web Network, or email newsletters, etc.) on which to run Performance Ads for purposes of delivery of contracted-for goods.
(f) If Advertiser tracks delivery on its own or by third party ad server (i) Advertiser will provide either 24/7 online reports, or daily, weekly, and month-end reports that include click through rates, impressions, Actions and other relevant tracking information ("Reports"). The timely delivery and accuracy of the Reports are material obligations of Advertiser, and Advertiser acknowledges that AOL relies on Reports. Any loss or damage resulting from a breach of the foregoing obligation will not be subject to Section XI of the Standard Terms. For purposes of billing, calculation of deliveries for CPA campaigns will be based upon AOL 's reported numbers; CPM and CPC campaigns will also be based upon AOL 's reported numbers.
(g) Advertiser will be solely responsible for insuring proper functioning and placement of Web Beacons on Advertiser's web site. In the event AOL delivers Advertiser's campaign based on misleading campaign performance results because of a misplaced Web Beacon or malfunctioning page(s) on which the Web Beacon is placed, the parties agree that Advertiser will pay AOL based on AOL 's reasonable estimation of deliverables delivered (or would have been delivered in the case of malfunctioning webpage). Such estimation will be made by calculating the average conversion per thousand impressions for the three (3) days prior to misplacement or malfunction, and applying it to the total number of impressions delivered during the period of misplacement or malfunction. In the case of CPA campaigns, Advertiser further agrees not to make any material changes to the content of any landing page that is to generate Actions without first notifying AOL .
3. Search Marketplace. With respect to those line items in the Media Plan that reference the provision of AOL Search Marketplace services by AOL LLC ("AOL"), the following will apply:
(a) Advertiser recognizes that the technology platform for AOL search terms is provided by a third party (the "Third Party Platform Provider"). AOL will make available to Advertiser, as applicable, the standard reporting made available to AOL by the Third Party Platform Provider. AOL disclaims any representations or warranties, express or implied, with regard to any such reporting.
(b) AOL disclaims any representation or warranties, express or implied, regarding the validity of clicks on any advertisements, and Advertiser will not hold AOL responsible for any clicks on any advertisements, regardless of the source, nature, purpose or intent of the clicks. In the event that Advertiser believes that clicks on Advertiser's advertisements are the result of fraudulent activity, AOL will use commercially reasonable efforts to assist Advertiser with the dispute process. AOL will work in good faith with Advertiser and the Third Party Platform Provider to investigate and resolve any disputes around any possible fraudulent activity. To the extent that the Third Party Platform Provider determines that clicks on Advertiser's advertisements are the result of fraudulent activity, a refund of fees charged for any such fraudulent clicks will be provided.
(c) To the extent applicable, any activity related to Advertiser's search-based Advertisements will be billed and invoiced to Advertiser separate and apart from any non-search based Advertisements or inventory set forth in the IO.
(d) Unless otherwise agreed upon by the parties in writing, Advertiser will be responsible for managing Advertiser's search-based advertising campaign for AOL search terms.
4. Quigo. With respect to those line items in the Media Plan that reference the placement of Ads served by Quigo on the AdSonar Service of Quigo Technologies, Inc. ("Quigo"), the following will apply:
(a) With respect to Ads served by Quigo, the term "Ads" includes include all text, titles, descriptions, graphics, audio, keywords, keyword phrases, negative keywords (keywords that if included in the search will cause the advertisement not to be displayed), categories and topics and targeting as well as the web sites to which an Ad is linked ("Targets").
(b) Quigo's Affiliates include the owners and operators of the websites on which Quigo places Advertiser's Ads. Quigo's Affiliates are intended third party beneficiaries of Advertiser's indemnification obligations to Quigo.
(c) Makegoods will not apply to CPC Ads under any circumstances. Advertiser's sole remedy for a shortfall in the number of clicks will be to execute a new IO for the unspent amounts.
(d) Advertiser is subject to Advertiser Guidelines as published on Quigo's website at http://www.quigo.com/adsonarAdvGuidelines.htm which are incorporated into the IO by reference. Ads will be served on Quigo Affiliate sites based on such factors as relevancy, CPC rates, click-through rates and ad rotation algorithms. Advertiser will protect its password and will be responsible for all activity occurring under its password.
(e) Advertiser must notify Quigo in writing within sixty (60) days of any claim relating to disputed charges. In the event Advertiser fails to make timely payment, Advertiser will be responsible for all reasonable expenses (including attorneys' fees) incurred by Quigo in collecting such amounts.
(f) Except with respect to CPM Ads, Advertiser acknowledges that: (i) usage statistics provided by Quigo are the official, definitive measurements for the purposes of billing and for measuring Quigo's performance on any delivery obligation and no other measurements or usage statistics (including those of Advertiser or a third party ad server) will be accepted by Quigo and (ii) the discrepancy clause in Section XIII(a) of the IO will not apply to Ads other than CPM Ads. Quigo disclaims any representations or warranties, express or implied, regarding the validity of clicks on any Ads, and Advertiser will not hold Quigo responsible for any clicks on any Ads, regardless of the source, nature, purpose or intent of the clicks. In the event that Advertiser believes that clicks on Advertiser's Ads are the result of fraudulent activity, Quigo will work in good faith with Advertiser to investigate and resolve any disputes around any possible fraudulent activity. To the extent that Quigo determines that clicks on Advertiser's Ads are the result of fraudulent activity, a refund of fees charged for any such fraudulent clicks will be provided to Advertiser.
5. AOL Spot Marketplace. With respect to those line items in the Media Plan that reference the placement of advertising creative via the AOL Spot Marketplace, the following terms will apply:
(a) Billing on Actuals. Invoicing under this contract will be based on actual impressions delivered, as measured by AOL (i.e., in the case of each line item, the number of impressions delivered to each line item multiplied by the CPM for that line item on the "Media Plan"). An invoice will be delivered at the end of each calendar month for the impressions served within that month. If AOL delivers less than the number of impressions stated in the Media Plan, AOL will not be in breach and there will be no makegood obligations.
(b) Delivery. AOL will use commercially reasonable efforts to pace the campaign as evenly as possible throughout the term but reserves the right to suspend the campaign at any time. Advertiser acknowledges that a change of bid does not guarantee improved delivery and AOL does not guarantee any specific minimum level of impressions. Advertiser may request to pause the advertisements at any time and such request will take effect by the next business day.
(c) Reporting. Parties shall rely upon reporting from AOL unless Parties otherwise mutually agree to use DART or Atlas.
(d) Adjustment to Bounty. Parties may request a bounty change for a particular line item; however each line item can only be changed one time per seven (7) day period. Each change request must be for a minimum bounty of $0.05. Each bounty change request by Advertiser must be submitted to AOL in writing and such bounty adjustment shall take effect by the next business day from the date of such request unless otherwise notified by AOL . Budget caps and flight dates may be agreed to by the Parties in writing throughout the term.
6. Affiliate Program Participation. With respect to those line items in the Media Plan that reference the provision of Services (defined below) provided by AOL for participation in the AOL Affiliate Network, the following will apply:
(a) "Affiliate" means a third party, approved by AOL for participation in the AOL affiliate network, that will display promotions for the Advertiser.
(b) "Fee" means the payment set forth in Schedule 1 (as may be amended by the Parties from time to time) made to AOL by Advertiser for an approved Transaction or Transactions.
(c) "Intellectual Property Rights" means patents, rights in designs, trade marks, trading business or domain names, email addresses, copyrights (including any such rights in typographical arrangements, web sites or software), whether registered or not and any applications to register or rights to apply for registration of any of the foregoing rights in inventions, know how, trade secrets and other confidential information, rights in databases and all other intellectual property rights of a similar or corresponding character, which subsist now or in the future in any part of the world.
(d) "Restricted Affiliate" means an Affiliate that is a participant in the AOL Affiliate Network and has referred five (5) or more Transactions in the three (3) months prior to the termination or expiration of this IO.
(e) "Sales" means the Transactions entered into by customers of the Advertiser.
(f) "Service(s)" means the services provided by AOL 's affiliate network program whereby AOL will (itself and through its Affiliates) advertise and market Advertiser and its products and services online and via e-mail to potential customers principally in the United States and elsewhere as agreed between the Parties.
(g) "Transaction" means an Action (as defined in Section 2).
(h) Upon termination of the IO and/or any campaign, AOL will remove any and all hypertext links to Advertiser's website from the AOL website within fourteen (14) business days. Following such termination, Advertiser will report any and all relevant Transactions during such fourteen (14) day period.
(i) Advertiser represents and warrants that it will not intentionally solicit, induce, recruit, or enter into any relationship, directly or indirectly, with any Restricted Affiliate for a period of three (3) months following the termination date of this IO.
(j) Advertiser will comply with AOL instructions and guidelines for the placement of web beacons or other code on Advertiser's site. Advertiser will be solely responsible for the proper functioning and placement of such web beacons such that all Transactions from AOL Affiliates are properly recorded with AOL .
(k) Advertiser will ensure that AOL will be listed as the referrer in all instances where the last click to Advertiser by the customer has come from the AOL Network.
(m) In the event that Advertiser improperly places the tracking code, cookies, web beacons and/or other technologies which results in, among other things, AOL trafficking sales based upon misleading or incorrect performance results, AOL may bill Advertiser based upon AOL 's reasonable estimation of actions delivered, as determined by AOL in its sole discretion, and Advertiser will pay AOL based on such determination.
(n) Advertiser will or will ensure that the web beacon or tracking code is called in all cases where a potential customer is completing a Transaction, including, without limitation, by ensuring the AOL tracking code is called on all visitors' sessions that reach the thank you page or by correctly controlling its display by the setting of a cookie from Advertiser. In cases where Advertiser does not implement AOL tracking, Advertiser will ensure that equivalent technology is in place to ensure all Transactions on which Fees are due are recorded and reported to AOL .
(o) Advertiser represents and warrants that AOL 's tracking code is implemented according to AOL 's instructions and guidelines as provided by AOL from time to time.
(q) In connection with AOL 's provision of the Service, AOL agrees to provide the following account support services during the term of the IO:
i. Monthly management meetings with a AOL account manager to discuss performance of the campaigns;
ii. Weekly conference calls with a AOL account manager plus additional in-person meetings with an account manager as requested by Advertiser;
iii. Quarterly review meetings to discuss performance of the campaigns;
iv. Strategic review of potential Affiliates and the affiliate marketplace, and a comprehensive review of market offers.
(r) AOL will provide the following additional services for Advertiser in connection with Affiliates that participate in the AOL Affiliate Network:
i. Access to AOL 's analytics package, for full disclosure and information on the Service and all programs;
ii. Mutually agreed upon performance targets for the Service;
iii. Advertiser inclusion in the AOL annual marketing plan, where applicable;
iv. Strategic Affiliate workshops with Affiliates that participate in the AOL Affiliate Network;
v. Invitations to selected AOL seminars and corporate hospitality events.
(s) Advertiser will pay Fees to AOL for all Transactions at such rates agreed upon from time to time and reflected in Schedule 1.
(t) The records of approved Transactions recorded by AOL will be the basis for calculation of Fees due unless otherwise specified herein.
(u) AOL will contract directly with Affiliates for participation in all campaigns, and will be solely responsible for approving Affiliates for participation in campaigns. AOL will pay Affiliates directly for all approved Transactions, in accordance with Schedule 1. AOL will be solely responsible for the management of all Affiliate Transactions
(v) Advertiser will pay the network technology and access fee specified in Schedule 1 in the event that billings for that Advertiser by AOL are less than $10,000 in any calendar month.
(w) AOL reserves the right to invoice Advertiser for amounts paid by AOL to Advertiser in excess of Fifty Dollars ($50) per calendar year during testing of Advertiser's campaign.
(x) Advertiser must approve or reject all Transactions, including those reported via the Disputed Transactions Interface no later than fifteen (15) days of the Transaction date unless otherwise agreed to by the Parties. Notwithstanding anything herein to the contrary, all Transactions recorded by AOL will be considered approved if not approved by Advertiser on or after the day following the due date for approval by Advertiser.
(y) The Service is provided on an "as is" basis, with no warranties being given from AOL as to Service "up time." AOL will use commercially reasonable efforts to ensure that the Service is operated on a professional basis, and is available at all times.
(z) Affiliate contact details may only be used by Advertiser for personal contact with that Affiliate. These details are available in AOL 's management area and are not to be copied to be stored elsewhere either electronically or otherwise. Advertiser is permitted to use Affiliate e-mail addresses for specific, one-time communications to individual Affiliates prior to termination of this IO.
(aa) Advertiser represents and warrants that it has the legal and unimpeded right to use any Intellectual Property Rights within any or all domain names on which the tracking URLs will be constructed in all territories where it is intended to use the domain name and that they adhere with the requirements of the domain registration authorities on an ongoing basis. AOL will not be liable for any claims in connection with the domain names and all disputes will be resolved by Advertiser. AOL accepts no liability for the unavailability of the specified domain name.
(bb) Advertiser hereby grants AOL and its Affiliates a worldwide, non-exclusive, royalty-free license to use, reproduce, display, adapt, perform, store, and promote, on their websites and on other related marketing material Advertiser's metatags, URL(s), creative assets and marketing material ("Advertiser's Material") that is provided, or according to current practice is routinely used by Affiliates in the promotion of Advertiser's goods or services. Advertiser represents and warrants that it has the full power and authority to grant such a license to AOL .
(cc) Advertiser will provide to AOL guidelines from time to time detailing the criteria to be considered in Affiliate's email campaigns on behalf of Advertiser and Advertiser grants AOL the right to approve such email creative prepared by the Affiliate without obtaining the prior consent from Advertiser on each occasion providing it is in accordance with the guidelines.
7. Cancellation; Termination. The cancellation and termination provisions of the Standard Terms will apply to all purchases under the IO except for premium placements, including but not limited to AOL Welcome Screens purchased on a "spot" basis, which are noncancellable.
8. Governing Law; Jurisdiction. The IO and this Addendum will be governed by the laws of the State of New York without regard to its conflicts of laws principles. The parties consent to the exclusive jurisdiction of the courts located in New York County, New York for all matters arising under the IO and this Addendum.
9. Order of Precedence. This Addendum is supplementary to and modifies the IO. The terms of this Addendum supersede provisions in the IO only to the extent that the terms of this Addendum and the IO expressly conflict. However, nothing in this Addendum should be interpreted as invalidating the IO, and provisions of the IO will continue to govern relations between the parties insofar as they do not expressly conflict with this Addendum.
10. Counterparts. This Addendum may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same document. This Addendum may be executed via facsimile.