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Platform-A AAAA/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, Platform-A will mean Platform-A Inc., AOL LLC, and all AOL affiliates worldwide.
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 Platform-A 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 in the IO or applicable addendum.]
(b)"Performance Ad"means an advertising creative served by Platform-A using the AdLearn service on behalf of Advertiser.
(c) Notwithstanding the budget set forth on the Media Plan, both parties agree that Platform-A may allocate budget among or between campaigns as it deems appropriate, in its sole discretion.
(d) Platform-A 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.
(e) Impressions, clicks and actions are not delivered by size and may be distributed, in Platform-A Inc.'s sole discretion, as needed across sizes based on optimization. Media Company makes no guarantees or warranties with respect to its ability to deliver the number of deliverables (actions, clicks, and/or impressions) requested on the IO .
(g) 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 Platform-A 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 Platform-A's reported numbers; CPM and CPC campaigns will also be based upon Platform-A's reported numbers.
(h) Advertiser will be solely responsible for insuring proper functioning and placement of Web Beacons on Advertiser's web site. In the event Platform-A 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 Platform-A based on Platform-A'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 Platform-A.
(i) Either party will have the right to terminate any performance media on the Platform-A Network with two (2) business days' advance written notice to Platform-A. For purposes of this termination notice, e-mail will constitute written notice.
(j) Except as expressly set forth in this Agreement, Media Company does not make, and hereby specifically disclaims, any representations or warranties, express or implied, regarding the Platform-A Network, the services provided hereunder or otherwise relating to this Agreement, including any implied warranty of merchantability, or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. Additionally, all services provided by Media Company hereunder are provided"as is"without warranty of any kind express or implied. Media Company does not warrant that the services or the Platform-A Network will be uninterrupted or error free, nor does Media Company make any warranty as to the performance or any results that may be obtained by use of its services. Notwithstanding anything contained elsewhere in this Agreement, Media Company makes no guarantees or warranties with respect to its ability to deliver the number of deliverables (actions, clicks, and/or impressions) requested on the IO . Final product cost and deal cost shall be based upon deliverables actually delivered. Media Company shall use commercially reasonable efforts to deliver deliverables in accordance with specifications on the IO (such as even delivery, frequency capping), but makes no guarantee that such specifications will be met. Additionally, the flight dates on the IO are estimated. The campaign start is determined by the first impression served. The campaign will run for the targeted number of flight days as reflected on the IO. Therefore, the campaign end may be later than the targeted end date on the IO.
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/Adsonar . 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/Adsonar"), the following will apply:
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").
Quigo Affiliates include the owners and operators of the websites on which Quigo places Advertiser's Ads. Quigo Affiliates are intended third party beneficiaries of Advertiser's indemnification obligations to Platform-A.
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.
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.
Advertiser must notify Platform-A 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 Platform-A in collecting such amounts.
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 Standard Terms 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 . Platform-A Spot Marketplace . With respect to those line items in the Media Plan that reference the placement of advertising creative via the Platform-A Spot Marketplace, the following terms will apply:
___ Check here if Advertiser chooses to use Bid Sheets and not Adbid
(a) Billing on Actuals. Invoicing under this contract will be based on actual impressions or clicks delivered, as measured by Platform-A (i.e., in the case of each CPC or CPM line item, the number of impressions or clicks delivered to each line item multiplied by the relevant CPC or CPM for that line item on the"Media Plan") unless Parties otherwise mutually agree to use Platform-A approved third party reporting. An invoice will be delivered at the end of each calendar month for the impressions or clicks served within that month. If Platform-A delivers less than the number of impressions or clicks stated in the Media Plan, Platform-A will not be in breach and there will be no makegood obligations.
(b) Delivery. For CPM campaigns only, Platform-A 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 Platform-A does not guarantee any specific minimum level of impressions or clicks. 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 Platform-A unless Parties otherwise mutually agree to use Platform-A approved third party reporting.
(d) Bid Sheets. Advertiser will initiate campaign via Bid Sheets. In the event that Advertiser chooses to continue to use Bid Sheet a bounty change for a particular line item may be requested by Advertiser in writing to Platform-A and such bounty adjustment shall take effect by the next business day from the date of such request unless otherwise notified by Platform-A, however, each line item can only be changed one time per seven (7) day period.
(e) Adbid. An Advertiser who elects to use AdBid for campaigns run on
Platform-A's Spot Marketplace shall be subject to Platform-A's Terms and Guidelines for Automated Bidding Service ("AdBid"), found at http://www.advertising.com/AdBidGuidelines.html which are hereby incorporated by reference..
(f) Cancellation; Termination. Either party may terminate Spot Marketplace Advertisements on two (2) business days' advance written notice to Platform-A.
6. AOL Homepage/Premium Placements . 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 AOL Hompage/Premium Advertisements, AOL Welcome Screen Advertisements, or AOL Home Page Advertisements (collectively,"AOL Homepage/Premium Placements"), the following terms will apply:
(a) Advertiser will have the right to terminate AOL Homepage/Premium Placements purchased for calendar year 2009 upon thirty (30) business days advance written notice to Platform-A. For purposes of this termination notice, e-mail will constitute written notice.
(b) Advertiser will have the right to terminate AOL Homepage/Premium Placements purchased for the Holiday Period, which is defined as the time period of November 14, 2009 through and including December 23, 2009 , upon ninety (90) days advance written notice to Platform-A.
(c) Advertiser will not have the right to cancel any AOL Homepage/Premium Placements that number three (3) or more dates within a thirty (30) day time period.
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.