TERMINUS SOFTWARE, INC. ADDENDUM TO IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS (VERSION 3.0)
This Addendum (“Addendum”) is to the IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS (Version 3.0) (“Standard Terms”) found at http://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf. The Standard Terms, as modified by this Addendum, constitute the parties’ agreement (“Agreement”) regarding the delivery of certain internet advertising services and any IOs executed and delivered between the parties and shall be governed by the Agreement. Capitalized terms used and defined in the Standard Terms shall have the same meaning when used in this Addendum. All references to “Terms” in the Standard Terms shall mean the Standard Terms as modified by this Addendum. In the event of any inconsistency between the Standard Terms and this Addendum, the terms of this Addendum shall prevail. No waiver of or departure from this Agreement shall be effective absent Terminus’ specific written consent thereto. The Standard Terms are hereby modified as follows:
1. Advertiser (or Advertiser’s authorized Agency on its behalf) and Terminus Software, Inc. (“Terminus”) and its Affiliates, as Media Company, agree to be bound by the Standard Terms, as amended by this Addendum. All references in the Standard Terms to Media Company shall mean Terminus. Any terms and conditions proposed by Advertiser in acknowledging or accepting Terminus’s provision of services which are different from or in addition to the terms set forth in this Addendum or an applicable Insertion Order, each of which shall be executed by both parties, shall not be binding upon Terminus and shall be void and of no effect.
2. Advertiser (or Advertiser’s authorized Agency on its behalf) acknowledges that Terminus is not a publisher and is a service provider that provides digital media services (“Services”) using Terminus’s proprietary account-based marketing service platform (“Service Platform”), and therefore Sections I(a)(v), II(b), II(c), II(d), III(c), IV(c), VI, VII, IX(f) and XIII of the Standard Terms are not applicable and are hereby removed in their entirety. Sections III(a) and (b) regarding payment terms are hereby removed in their entirety and are replaced with payment terms set forth on each Insertion Order.
3. The definitions shall be amended as follows:
a. “Advertiser Site” means websites owned or operated by Advertiser.
b. “European Law” means: (i) prior to 25 May 2018, Directive 95/46/EC and applicable laws implementing that Directive in Member States; (ii) on and after 25 May 2018, Regulation 2016/679 (GDPR); (iii) Directive 2002/58/EC (as amended or replaced from time to time) and applicable laws implementing that Directive in Member States; and (iv) any data protection and privacy laws of the United Kingdom in effect from time to time. References in this Addendum or the DPA to “controller”, “data subject”, “personal data”, “process”/”processed”/processing”, “processor” and “special categories of personal data” shall have the meanings given in European Law;
c. “Media Company Properties” is deleted in its entirety;
d. “Network Properties” means the websites on which Media Company purchases digital media on behalf of Agency either through premium direct deals with publishers or through RTB exchanges, in each case, as available through the Service Platform;
e. “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, Ad targeting information, and all data provided to Media Company by or on behalf of Advertiser, but in each case in respect to Advertiser, excluding Site Data.
f. “Performance Data” means (x) data regarding a campaign gathered during delivery of an Ad pursuant to an IO (e.g., number of impressions, interactions, and header information) and (y) data gathered by Media Company from Advertiser Sites with Advertiser’s consent (or the consent of Advertiser’s Agency on Advertiser’s behalf), but in each case excluding Site Data or IO Details.”
g. “Site” means a digital property that is accessible by users (including websites, mobile sites and software applications).
h. “Site Data” means any data that is (A) preexisting 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; (C) entered by users on any Media Company Site other than User Volunteered Data; (D) generated in connection with providing services under this IO that is Aggregated; and (E) all data relating to any error by, issue with, or enhancement to the operation of the services provide by Media Company under the IO.
i. “Third Party Ad Server” is deleted in its entirety.
4. Section II(a) and Section IV(b) are deleted in their entirety and replaced with the following:
“Compliance with IO. Media Company will comply with the campaign strategy set forth in IOs and any other directions provided in writing by Advertiser (or Advertiser’s authorized Agency on its behalf), including Ad targeting specifications, and will deliver to Advertiser (or Advertiser’s authorized Agency on its behalf) any agreed upon reports relating to the performance of the campaign”.
5. The following shall be added as a clause (iv) at the end of Section X(b): “or (iv) Advertiser’s alleged breach of the DPA”.
6. Section XI is hereby amended and replaced in its entirety as follows:
“EXCEPT FOR INTENTIONAL MISCONDUCT BY AN ADVERTISER, AN AGENCY ACTING ON BEHALF OF AN ADVERTISER, OR MEDIA COMPANY, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUE, AND/OR PROFITS), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THIS AGREEMENT REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES OR OTHERWISE, AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. MEDIA COMPANY’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE FEES PAID TO MEDIA COMPANY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE THAT LIABILITY FIRST AROSE”.
8. Section XII(g) shall be replaced in its entirety with the following: “Agency, Advertiser, and Media Company will at all times comply with all federal, state, and local statutory and regulatory law, including but not limited to European Law, that is applicable to their performance of their respective obligations under the IO.
9. The following will be added to Section XIV(d) immediately after the first sentence: “In the event of any inconsistency between the terms of the Terms and the Addendum, the terms of the Addendum shall govern.”
10. The blank spaces reserved in Section XIV(d) shall be filled in with the State of Georgia and Atlanta, Georgia.
11. The DPA shall be incorporated into and part of this Addendum for any campaign where Collected Data or User Volunteered Data includes “personal data” or similar term as defined under applicable law.