Last Modified: July 1, 2022
These Advertisers Terms of Service ("Terms") is a legal agreement between Brane Pte. Ltd. ("Brane", "us", or "we") and the entity or person ("you", "your", or "user") who run ad campaigns and receive other business services that may be operated by Brane and its affiliates (each, a "Service"). These Terms describes the terms and conditions that apply to your use of the Services.If you do not understand any of these Terms, please contact us before using the Services. You may not access or use any Services unless you agree to abide by all of these Terms.
If you are accessing or using the Services on behalf of a business or other legal entity ("Business"), (i) you represent that you are authorized to enter into, and bind the Business to these Terms and register for the Services (and you will provide us with all the documents we may ask for to confirm your authority); and (ii) the Business is legally and financially responsible for your access to and use of the Services, as well as for the use of the Services by others affiliated with you, including any employees, agents or contractors.
As of May 1, 2022 all Insertion Orders ("IOs") entered into between Brane Pte. Ltd., its subsidiaries and affiliated companies (collectively, "Brane" or "we", "us", "our") and a Demand Partner (defined hereunder) to run ad campaigns via the Brane Services are governed by the IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS (Version 3.0) (the "Terms") as amended by Brane below.DEFINITIONS(a).
"Ad" means any advertisement provided by Agency on behalf of an Advertiser.(b).
"Advertiser" means the advertiser for which Agency is the agent under an applicable IO.(a).
"Advertising Materials" means artwork, copy, or active URLs for Ads.(c).
"Affiliate" means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.(d).
"Agency" means the advertising agency listed on the applicable IO.(e).
"CPA Deliverables" means Deliverables sold on a cost per acquisition basis.(f).
"CPC Deliverables" means Deliverables sold on a cost per click basis.(g).
"CPI Deliverables" means Deliverables sold on a cost per app install basis(h).
"CPL Deliverables" means Deliverables sold on a cost per lead basis.(i).
"CPM Deliverables" means Deliverables sold on a cost per thousand impression basis. "Deliverable" or "Deliverables" means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).(j).
"Deliverable" or "Deliverables" means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions);(k).
"Demand Partner" means the Advertiser, Agency, Reseller and/or such other buyer or demand partner of Brane, as the case may be and as the context requires;(l).
Getbrane.com means the online platform which enables Demand Partners to run its/their Ad campaigns on Affiliate Promotion Properties, Media Company Properties and/or Network Properties, as the case may be;(m).
"IO" means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency or Advertiser.(n).
"Media Company" means Brane Pte. Ltd. its subsidiaries and affiliated companies.(o).
"Media Company Properties" are websites specified on an IO that are owned, operated, or controlled by Media Company.(p).
"Network Properties" means websites specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads.(q).
"Policies" means advertising criteria or specifications made conspicuously available, including content guidelines, content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company's public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.(r).
"Representative" means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.(s).
"Reseller" means an entity appointed by Brane as its representative in a certain region or territory to resell the Network Properties to potential demand partners, advertisers and/or buyers, as the case may be.(t).
"Site" or "Sites" means Affiliate Promotion Properties, Media Company Properties and Network Properties.(u).
"Terms" means these amended Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0.(v).
"Third Party" means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.(w).
"Third Party Ad Server" means a Third Party that will serve and/or track Ads.I. INSERTION ORDERS AND INVENTORY AVAILABILITY
(a). IO Details. From time to time, Media Company and Demand Partner may execute IOs (including where applicable IOs for Brane.com) that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, which may include how it is allocated to be spent across Media Company Properties and/or Affiliate Promotion Properties (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected. Excluding Advertising Materials provided by Demand Partner, Media Company shall own and retain all right, title and interest in any materials and content it creates for the media buy pursuant to the IO. Demand Partner agrees that it shall not at any time assert or claim any interest in or do anything that may adversely affect the validity or enforceability of any intellectual property or other proprietary right belonging to Media Company hereunder. The Parties agree that depending on the nature of use and access of the Brane.com by the Demand Partner, the Media Company may at its sole discretion require the Demand Partner to either enter into a separate services agreement (that will incorporate these terms to the extent applicable) or an IO (as set forth herein).
(b). Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within two (2) business days of receipt of an IO signed by Demand Partner if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, or e-mail communication) approval of the IO by Media Company and Demand Partner, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Demand Partner.
(c). Revisions. Revisions to accepted IOs will be made in writing and acknowledged by the other party in writing.II. AD PLACEMENT AND POSITIONING
(a). Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c), will use commercially reasonable efforts to create a reasonably balanced delivery schedule; provided that, Demand Partner acknowledges that given the nature of Media Company's business impressions on Sites may vary at times. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Demand Partner in writing.
(b). Changes to Site. Media Company will use commercially reasonable efforts to provide Demand Partner at least 10 business days prior notification of any material changes to the Site (excluding Affiliate Promotion Properties) that would materially change the target audience or materially affect the size or placement of the Ad specified on the applicable IO. Should such a modification occur with or without notice, as Demand Partner's 's sole remedy for such change, Demand Partner may cancel the remainder of the affected placement without penalty within the 10-day notice period. If Media Company has failed to provide such notification, Demand Partner may cancel the remainder of the affected placement within 30 days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
(c). Technical Specifications. Media Company may (on request) submit or otherwise make electronically accessible to Demand Partner final technical specifications within two (2) business days of the acceptance of an IO. Changes by Media Company to the specifications of already-purchased Ads after that two (2) business day period will allow Demand Partner to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company's cost, and with final creative approval of Demand Partner, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
(d). Editorial Adjacencies. Media Company acknowledges that certain Demand Partners may not want their Ads placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated on the IO (" Editorial Adjacency Guidelines
(a). Invoices. The invoices will be sent by Media Company to the Demand Partner upon completion of the relevant month, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Demand Partner's billing address as set forth on the IO and will include information reasonably specified by Demand Partner, such as the IO number, Demand Partner name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO.
(b). Upon request from the Demand Partner, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Demand Partner for the services provided with the net cost (i.e., the cost after subtracting any applicable discounts and commissions, including but not limited to Demand Partner commissions, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.
(c). Payment Date. Order acceptance is subject to credit approval of Demand Partner; Demand Partner shall provide information reasonably requested by Media Company to evaluate such entity's credit and Media Company reserves the right to cancel credit at any time for any reason in its sole discretion, with or without notice. Provided credit is approved, payment is due thirty (30) days from the invoice date unless otherwise agreed in writing by Media Company. Any dispute on the invoice should be raised by the Demand Partner within fifteen (5) days from the date of receipt of invoice, failing which the invoice shall be deemed accepted.
(d). In the event of non-payment, and without limiting any other remedies, at its sole discretion, Media Company may offset any amounts due to Media Company against any amounts due from Media Company to Demand Partner under any agreement or IO or may offset such amounts against any charges for media to be delivered by Media Company.
(e). Payment Liability. Unless otherwise set forth by the Media Company in the agreement or the IO, a 2% per month (pro-rated for part thereof) penal interest on late payments shall be levied from the date of expiry of the payment due date of an invoice by the Media Company.
If the Demand Partner is an Agency, it agrees to make every reasonable effort to collect and clear payments from the end advertiser on a timely basis and extend reasonable cooperation to the Media Company in any such efforts.
Demand Partner's credit is established on a client-by-client basis.
If Advertiser proceeds have not cleared for the IO, other advertisers from Demand Partner, being an Agency, will not be prohibited from advertising on the Site due to such non-clearance if such other advertisers' credit is not in question.
Upon request, Demand Partner will make available to Media Company written confirmation of the relationship between Demand Partner and Advertiser. This confirmation should include, for example, Advertiser's acknowledgment that Demand Partner is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Demand Partner will confirm whether Advertiser has paid to Demand Partner in advance funds sufficient to make payments pursuant to the IO.
If Advertiser's or Demand Partner's credit is or becomes impaired, Media Company may require payment in advance.
Payment Recovery Costs. Pursuant to the payment obligations of the Demand Partner, as the case maybe, as mentioned under these Terms, in the event that Media Company is required to seek payment directly from Advertiser, Media Company may directly approach the Advertisers for claiming such amounts due and it may impose additional costs on the Demand Partner, as it may deem fit in its sole discretion, in relation to the IO associated with the recovery of the outstanding payment (i.e., the reasonable costs of debt recovery companies instructed to recover the payments).
Where the Parties have entered into a separate services agreement for Brane.com, invoicing and payment terms will be as per the said services agreement.IV. REPORTING
(a). Media Company Reporting. If Media Company is serving the campaign, Media Company may make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by day and summarized by creative execution, content area (Ad placement), impressions, clicks, spend/cost, and other variables as may be defined on the IO (e.g., keywords).
Once Media Company has provided the online or electronic report, if applicable, it agrees that Demand Partner is entitled to reasonably rely on it, subject to provision of Media Company's invoice for such period.
In the event there are any claims by the Demand Partner regarding the campaign delivery, the Demand Partner shall inform the same to the Media Company in writing (along with reasonable evidence from a Media Rating Council accredited third party vendor). For any claims related to active campaigns, the Media Company will only investigate the claims which fall within the preceding 90 days period from the date of receipt of such claims. For claims related to campaigns which have concluded the Demand Partner shall inform the Media Company within 30 days from the applicable campaign conclusion and the Media Company will only investigate the claims which fall within the preceding 30 days period from the date of conclusion of the applicable campaign.
(b). A user's engagement in steps or actions required to become a user of Demand Partner's offering will be taken into consideration for Media Company's attribution or determination of an install (whether by itself or a third party) within the applicable Ad View Window period. A user will be deemed to engage in such steps or actions where an Ad rendered by Media Company is viewed/played/clicked upon or otherwise any interactive feature thereof is utilized. Media Company will endeavour to fire beacons as separate events to attribution partners towards such user engagement except where such partner does not support event beacons in which case Media Partner may use click or view beacons for attribution. Media Company reserves the right to exercise a view and attribution window during the applicable reporting period, commencing upon the time a user has either viewed, played, accessed or clicked onto an Ad rendered by Brane ( "Ad View Window"
)V. CANCELLATION AND TERMINATION(a).
Without Cause. Unless designated on the IO as non-cancelable, Demand Partner may cancel the entire IO, or any portion thereof, as follows:
- With 14 days' prior written notice to Media Company, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Demand Partner cancels the guaranteed portions of the IO eight (8) days prior to serving of the first impression, Demand Partner will only be responsible for the first six (6) days of those Deliverables.
- With seven (7) days' prior written notice to Media Company, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables.
- With 30 days' prior written notice to Media Company, without penalty, for any flat fee-based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships.
- Demand Partner will remain liable to Media Company for amounts due for any custom content or development ("Custom Material") provided to Demand Partner or completed by Media Company or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Media Company will specify the amounts due for such Custom Material as a separate line item. Demand Partner will pay for such Custom Material within 30 days from receiving an invoice therefore.
For Cause. Either Media Company or Demand Partner may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Demand Partner breaches its obligations by violating the same Policy three times (and such Policy was provided to Demand Partner) and receives timely notice of each such breach, even if Demand Partner cures such breaches, then Media Company may terminate the IO or placements associated with such breach upon written notice. If Demand Partner does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Media Company to Demand Partner, then Media Company may terminate the IO and/or placements associated with such breach upon written notice.(c).
Where the Parties have entered into a separate services agreement for Brane.com, the termination terms will be as per the services agreement.VI. MAKEGOODS(a).
Notification of Under-delivery. Media Company will monitor delivery of the Ads, and will notify Demand Partner either electronically or in writing as soon as possible if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Demand Partner and Media Company may arrange for a makegood consistent with these Terms.(b).
Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the IO, and/or if there is an omission of any Ad (placement or creative unit), Demand Partner and Media Company will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the IO or at the time of the shortfall. If no makegood can be agreed upon, Demand Partner may execute a credit equal to the value of the under-delivered portion of the IO for which it was charged. If Demand Partner has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then, if Demand Partner is reasonably current on all amounts owed to Media Company under any other agreement for such Demand Partner, Demand Partner may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Media Company provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Demand Partner.(c).
Unguaranteed Deliverables. If an IO contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.VII. FORCE MAJEURE(a).
Generally. Excluding payment obligations, neither Demand Partner nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes ("Force Majeure event"
). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Demand Partner, Media Company will allow Demand Partner a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at the time of purchase. In addition, Demand Partner will have the benefit of the same discounts that would have been earned had there been no default or delay.(b).
Related to Payment. If Demand Partner's ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Demand Partner's reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Demand Partner will make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Demand Partner from any of its obligations as to the amount of money that would have been due and paid without such condition.(c).
Cancellation. If a Force Majeure event has continued for five (5) business days, Media Company and/or Demand Partner has the right to cancel the remainder of the IO without penalty.VIII. AD MATERIALS(a).
Submission. Demand Partner will submit Advertising Materials pursuant to Section II(c) in accordance with Media Company's then-existing Policies. Media Company's sole remedies for a breach of this provision are set forth in Section V(b), above, Sections VIII (c) and (d), below, and Sections IX (b) and (c), below.(b).
Creative Guidelines. Demand Partner provide guidelines how to the Advertiser's brand should be represented. Media Company may create any Advertising Materials on behalf of the Advertiser according these Guidelines. The Demand Partner has right to reject Advertising Materials only for violations these Guidelines. If Advertising Materials are rejected by the Demand Partner not for violations these Guidelines, the Media Company will charge the Demand Partner the production and placement fees for each of these Advertising Materials.(c).
Creative Moderation. Demand Partner has right to review Advertising Materials listed to be displayed on Media Company Properties and/or Affiliate Promotion Properties and to search for any violations of the Creative Guidelines (b) within two (2) business days after Media Company sent these Materials via e-mail to the Demand Partner. Rejects any Advertising Materials by the Demand Partner after that two (2) business day period will allow Media Company to charge the production and placement fees for each of these Advertising Materials.(d).
Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Demand Partner on the IO start date on a pro rata basis based on the full IO, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Demand Partner will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section VIII(a) but fails to commence a campaign on the IO start date.(e).
Damaged Creative. If Advertising Materials provided by Demand Partner are damaged, not to Media Company's specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Demand Partner within two (2) business days of its receipt of such Advertising Materials. If Demand Partner fails to provide Media Company with Advertising Materials to replace such damaged, non-compliant or otherwise unacceptable Advertising Materials prior to the scheduled start of the media flight, Advertising Materials will be deemed 'late' pursuant to subsection VIII(b).(g).
No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Demand Partner's approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.(h).
Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects. All use of Third-Party Ad Server tags shall comply with Media Company's Policies including, without limitation, policies regarding use of tags, cookies and any other technology now known or hereafter developed that is designed to track users' online behaviour or activity as supplied by Media Company from time to time.(i).
Trademark Usage. Media Company, on the one hand, and Demand Partner, on the other, will not use the other's trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other's prior written approval.IX. INDEMNIFICATION(a)
By Media Company. Media Company will defend, indemnify, and hold harmless Demand Partner and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys' fees) (collectively, "Losses"
) resulting from any allegations, actions, causes of action, obligations, demands, threatened claims and claim, judgment, or proceeding (collectively, "Claims"
) brought by a Third Party and resulting from (i) Media Company's alleged breach of Section XI or of Media Company's representations and warranties in Section XIII(a), or (ii) Advertising Materials provided by Media Company for an Ad (and not by Demand Partner, and/or each of its Affiliates and/or Representatives) ("Media Company Advertising Materials"
) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene. Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company's customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Demand Partner, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company's serving such Ad in breach of such targeting.(b)
By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Advertiser's alleged breach of Section XI or of Advertiser's representations and warranties in Section XIII(a), (ii) Advertiser's violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Demand Partner at least 14 days prior to the violation giving rise to the Claim), or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Media Company in accordance with these Terms or an IO. Advertiser shall further indemnify Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (1) Ads and Advertising Materials provided by Demand Partner to Media Company and posted on a Site, (2) Media Company's use of any content or technology other than an Ad or Advertising Materials that Demand Partner require Media Company to use, (3) the pages and sites to which an Ad or Advertising Materials link, and (4) use of any products sold through an Ad or Advertising Materials or through pages or sites to which they link.(c)
By Agency. Agency represents and warrants that it has the authority as Advertiser's agent to bind Advertiser to these Terms and each IO, and that all of Agency's actions related to these Terms and each IO will be within the scope of such Agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency's alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency-specific obligations under Section XI.(d)
Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party's obligations except to the extent such party is prejudiced by such failure or delay), 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(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.X. LIMITATION OF LIABILITY(a)
Excluding Demand Partner's, and Media Company's respective obligations under Section IX, damages that result from a breach of Section XI, or intentional misconduct by Demand Partner, 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, 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.(b)
Except in connection with the indemnification obligation under Section IX(a), Media Company's (including all companies on whose Sites Ads are distributed ("Participating Companies"
) total cumulative liability to Demand Partner from all causes of action, claims and all theories of liability will be limited to direct damages only and will not, exceed the fees received by Media Company corresponding to the portion of the IO spend for Ads distributed on either (a) Media Company Properties or (b) Affiliate Promotion Properties to the extent such causes(s) of action arise from each such distribution channel, respectively. Participating Companies shall be deemed third party beneficiaries of Advertiser's obligations hereunder including Advertiser's indemnity obligations.XI. NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS(a)
Definitions and Obligations. "Confidential Information" will include (i) all information marked as "Confidential," "Proprietary," or similar legend by the disclosing party ("Discloser") when given to the receiving party ("Recipient"); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser's contribution to IO Details (as defined below) shall be considered such Discloser's Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser's Confidential Information other than as provided for on the IO.(b)
Exceptions. Notwithstanding anything contained herein to the contrary, the term "Confidential Information" will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient's possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.(c)
GDPR. Without limiting the generality of the terms of the agreement, for Demand Partner who have users based in EEA, Demand Partner acknowledge and agree that your collection, use, sharing and/or treatment of any Personal Data (as such term is defined under the General Data Protection Regulation ("GDPR")) must be in compliance with the requirements of GDPR. If Demand Partner whether by itself or through its third parties provide or share with Media Company any Personal Data for users based in EEA, Demand Partner will as the Controller (as such term is defined under GDPR) remain responsible for obtaining appropriate user consent and execute a relevant data protection agreement for setting out the terms of Processing (as such term is defined under GDPR) by Media Company. Where you intend to share any EEA user Personal Data as defined under GDPR with Media Company, please share your data protection agreement with us for review. You agree not to share any EEA user Personal Data with Media Company except where such a data protection agreement has been executed.(d)
If Demand Partner are a GDPR compliant demand partner with Media Company and where you or your third parties (at your behest) are receiving EEA user Personal Data as defined under GDPR from Media Company, you accept the terms of the Data Protection Rider as set out in Brane.com/advertiser-data-protection-rider
for the permitted scope of Processing of such Personal Data by you. If you have not accepted the said data protection agreement, Media Company as the Controller will not be in a position to share any such Personal Data with you or your third parties.(e)
Where Demand Partner requires any third party including its trackers on its behalf to either receive from Media Company or share with Media Company, any Personal Data, Demand Partner shall remain liable for the acts and omissions of its third parties to the same extent Demand Partner would be liable if it were either receiving/sharing such Personal Data from/with Media Company. Accordingly, Demand Partner agrees to execute appropriate data processing agreements with such third parties.(f)
CCPA. For Demand Partners proposing to share or obtain any Personal Information of a US based consumer as envisaged under CCPA (as such terms are defined under CCPA), the Demand Partner agrees to comply with the requirements of CCPA and terms of Privacy Addendum for Demand Partners
Additional Definitions. As used herein the following terms shall have the following definitions:
- "User Volunteered Data" is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Demand Partner.
- "IO Details" are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
- "Performance Data" is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
- "Site Data" is any data that is (A) pre-existing Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company's Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
- "Collected Data" consists of IO Details, Performance Data, and Site Data.
- "Repurposing" means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
- "Aggregated" means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Demand Partners and precludes identification, directly or indirectly, of a Demand Partner.
Use of Collected Data
- Notwithstanding anything to the contrary contained in this Agreement, any data (including, without limitation, User Volunteered Data, Performance Data and Site Data) collected and used by Demand Partner and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Demand Partner in connection with a campaign (including, without limitation, Third Party Ad Servers) is subject to Media Company's prior written approval. Without limiting the foregoing, unless otherwise authorized by Media Company in advance in writing, Demand Partner and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Demand Partner in connection with a campaign (including, without limitation, Third Party Ad Servers) may collect and use Collected Data solely for the purpose of performing under the IO and may not collect or use it for any other purpose (including, without limitation, to target or retarget advertisements). Upon reasonable advance notice, Media Company may review documents in the possession of Demand Partner and any Third Party acting on their behalf or otherwise engaged to render, perform or provide services for Demand Partner in connection with a campaign (including, without limitation, Third Party Ad Servers) solely for the purpose of verifying compliance with the foregoing and Demand Partner shall ensure Media Company has reasonable access to all such documents for such purpose. In addition, unless otherwise authorized by Media Company in advance in writing, Demand Partner will not (A) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party (including, without limitation, Third Party Ad Servers) except as set forth in Section XI(h)(iii)."
- Unless otherwise authorized by Demand Partner, Media Company will not: (A) use or disclose IO Details of Demand Partner, Performance Data, or a user's recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Demand Partner, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO. Media Company may use Collected Data in an Aggregated form generated or collected in connection with the IO (collectively "Permitted Data") for reporting purposes, optimizing network performance, and other legitimate business purposes of Media Company, on the basis that the Permitted Data does not identify Demand Partner and is not used to target based upon Demand Partner's identity."
- Demand Partner, and Media Company (each a "Transferring Party") will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- Media Company may collect and store anonymous device identifiers provided by the Demand Partner, solely for the purpose of targeting or retargeting advertisements, unless the Demand Partner prevents collection or storage of the anonymous device identifiers in any applicable IO placed with the Media Company.
Compliance with Law. Demand Partner and Media Company will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.(l)
Demand Partner Use of Data. Demand Partner will not: (i) use Collected Data unless Demand Partner is permitted to use such Collected Data, nor (ii) use Collected Data in ways that Demand Partner is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Demand Partner in Section XI(h)(i) shall not prohibit Demand Partner from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.XII. THIRD PARTY AD SERVING AND TRACKING (Applicable if Third Party Ad Server is used)(a)
Ad Serving and Tracking. Media Company will track delivery through its ad server and, provided that Media Company has approved in writing a Third-Party Ad Server to run on its properties, Demand Partner will track delivery through such Third-Party Ad Server. Demand Partner may not substitute the specified Third-Party Ad Server without Media Company's prior written consent.(b)
Controlling Measurement. If both parties are tracking delivery, the measurement used for invoicing advertising fees under an IO ("Controlling Measurement") will be determined as follows:
- Except as specified in Section XII(b)(iii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the "IAB/AAAA Guidelines").
- If both ad servers are compliant with the IAB/AAAA Guidelines, the Controlling Measurement will be the Third Party Ad Server if such Third Party Ad Server provides an automated, daily reporting interface which allows for automated delivery of relevant and non-proprietary statistics to Media Company in an electronic form that is approved by Media Company; provided, however, that Media Company must receive access to such interface in the timeframe set forth in Section XII(c), below.
- If neither party's ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (ii), above, cannot be met, the Controlling Measurement will be based on Media Company's ad server, unless otherwise agreed by Demand Partner and Media Company in writing.
Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Media Company. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Demand Partners, in which case new access for each IO is not necessary. Nothing in this Section XII(c) shall limit, replace or nullify any other obligation set forth in this Agreement (including this Brane Addendum).(d)
Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Media Company and Third-Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Demand Partner reserves the right to either:
- Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Demand Partner and Media Company make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third-Party Ad Server, or
- Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
Measurement Methodology. Media Company will make reasonable efforts to publish, and Demand Partner will make reasonable efforts to cause the Third-Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.(f)
Third Party Ad Server Malfunction. Where Demand Partner is using a Third-Party Ad Server and that Third Party Ad Server cannot serve the Ad, Demand Partner will have a one-time right to temporarily suspend delivery under the IO for a period of up to 72 hours. Upon written notification by Demand Partner of a non-functioning Third Party Ad Server, Media Company will have 24 hours to suspend delivery. Following that period, Demand Partner will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Media Company is notified that the Third-Party Ad Server is able to serve Ads. After the 72-hour period passes and Demand Partner has not provided written notification that Media Company can resume delivery under the IO, Demand Partner will pay for the Ads that would have run, or are run, after the 72-hour period but for the suspension, and can elect Media Company to serve Ads until the Third Party Ad Server is able to serve Ads. If Demand Partner does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may use the inventory that would have been otherwise used for Media Company's own advertisements or advertisements provided by a Third Party.(g)
Third Party Ad Server Fixed. Upon notification that the Third-Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Media Company owing a makegood to Demand Partner.XIII. MISCELLANEOUS(a) Compliance with laws:
Trade Compliance. Each Party will comply with all laws and regulations applicable to such Party's performance of their respective obligations under these Terms. Without limiting the generality of the foregoing, each Party will comply fully with all applicable export control and sanctions laws and regulations of any country having competent jurisdiction to ensure that no services, payments, or other deliverables provided under these Terms are: (i) provided to, purchased by, routed through, or used for the direct benefit of any party subject to the restriction of a sanctions or export denial list; (ii) provided to, purchased by, routed through, or used for the direct benefit of any region subject to comprehensive sanctions (presently including Crimea, Cuba, Iran, Syria, Afghanistan or North Korea); or (iii) used for any purpose prohibited under applicable export control and sanctions laws and regulations, including, but not limited to, nuclear, chemical, or biological weapons proliferation.
Anti Corruption. Demand Partner affirms that its policy and corporate practices comply with and require parties with whom its contracts to, comply with all applicable anti-bribery laws that apply to it and its operations, including without limitation, the Indian Prevention of Corruption Act, 1988, U.K. Bribery Act 2010 and U.S. Foreign Corrupt Practices Act (collectively, "Anti-Bribery Laws"). In connection with Demand Partner's performance under these Terms, it confirms that: (i) It is aware of and has appropriate procedures to comply with the Anti-Bribery Laws and will advise all persons and parties under its control or acting as its agent of the requirements of the Anti-Bribery Laws; (ii) It will not be or cause any Party to be in violation of the Anti-Bribery Laws; and (iii) should the Demand Partner learn of, or have reasons to know of, any request for payment that is inconsistent with the Anti-Bribery Laws, it shall immediately notify Brane.
In case the Demand Partner is found to have violated any Trade Laws or Anti-bribery Laws in connection with its performance under these Terms and any IO, placements, or service agreement entered into pursuant to or subject to these Terms, Brane shall have the right to terminate these Terms and such other agreements or IOs entered pursuant to or subject to these Terms with immediate effect and no further liability, upon written notice to the Demand partner, without prejudice to any other rights or remedies available to it under contract or in law. Demand Partner will indemnify Brane against any losses, liabilities, damages, costs (including but not limited to legal fees), and expenses incurred by or awarded against Brane as a result of any breach of this Section XIII(a) - Compliance of Laws.(b) Necessary Rights.
Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Demand Partner represents and warrants that Demand Partner has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.(c) Assignment.
Demand Partner may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company's prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.(d). Non-solicitation.
In return for the Media Company making the Ad delivery transparent to the Demand Partner, the Demand Partner undertakes to the Media Company and any of its Affiliates, that during the term hereof and within three years following the termination of this Terms, the Demand Partner shall not, directly or indirectly, solicit, hire, recruit, or attempt to solicit, hire, or recruit, any employee, service provide or agent of the Media Company and any of its Affiliates, or any employee, service provide or agent who has been employed or engaged by the Media Company and any of its Affiliates in one year preceding the date hereof (collectively, the "Covered Partners"), or induce the termination of employment of any Covered Partners.
This non-solicitation provision explicitly covers all forms of oral, written, or electronic communication, including, but not limited to, communications by email, regular mail, express mail, telephone, fax, instant message, and social media, including, but not limited to, Facebook, LinkedIn, Instagram, Twitter, and any other social media platform, whether or not in existence at the time of entering into this agreement.(d) Entire Agreement.
Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document. Each IO may be executed by electronic signature and exchanged by email in scanned or pdf format.(e) Conflicts; Governing Law; Amendment.
In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws set out in the terms of the IO. Media Company and Demand Partner agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in the country set out in the IO, and the parties consent to the jurisdiction of such courts. Further, the Parties agree that the following provisions of these Terms shall not apply where the Parties have entered into a separate services agreement for Brane.com: (i) the second point (Availability; Acceptance) of the Section titled "Insertion Orders and Inventory Availability"; (ii) the second point (Changes to Site) of the Section titled "Ad Placement and Positioning"; and (iii) the Section titled "Makegoods". No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative. In the event of an IO not containing a law and jurisdiction provision the terms of the IO shall be governed by and construed in accordance with the laws of Singapore.(f) Notice.
Any notice required to be delivered hereunder will be deemed delivered immediately if sent electronically or by fax. All notices to Media Company and Demand Partner will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Demand Partner will be sent to the email address specified on the IO.(g) Survival.
Sections III, VI, IX, X, XI, and XIII will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party's Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.(h) Headings.
Section or paragraph headings used in these Terms are for reference purposes only and should not be used in the interpretation hereof.
Please note that in addition to the above, Demand Partner must also ensure that the Ads also strictly comply with any region-specific requirements, regulations and/or laws.