ADVERTISING PLACEMENT ORDER
GENERAL TERMS AND CONDITIONS
These RevAmp Advertising Placement Order General Terms and Conditions (“T&O”) are entered into between Revamp Pro LLC (“RevAmp”) and the Publisher (“Publisher” and, together with RevAmp, the “Parties” and, each, a “Party”) party to the respective Advertising Placement Order (the “PO” and, together with these T&O, this “Agreement”). Should there be any conflict between any PO and these T&O, the terms of the PO shall control.
DEFINITIONS. For the purposes of this Agreement, the following terms shall have the respective meanings ascribed to them as follows:
“Ad(s)” or “Advertising Material(s)” means graphical, interactive, mobile, video, rich media, artwork, copy, active URLs for advertisements, or text-based advertisements, and the Tags therefor, including banner advertisements, buttons, towers, and/or skyscrapers, as well as non-graphical elements such as tracking pixels and third-party pixels;
“Ad Request” means the notification by Publisher to RevAmp of the availability of Advertising Inventory for sale to Clients via the RevAmp platform;
“Advertising Inventory” means the online media inventory, across one or more Publisher Properties, delivered by Publisher for auction or sale through RevAmp;
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a person;
“Applicable Law” means, at any particular time in respect of any particular person, property, transaction or event, all laws, statutes, regulations, treaties, judgments or decrees applicable to that person, property, transaction or event (whether or not having the force of law) and all applicable requirements, requests, official directives, consents, approvals, authorizations, guidelines, decisions, rules, orders and policies of any governmental authority having or purporting to have authority over such person, property, transaction or event, including without limitation, all data protection and privacy laws, regulations and governmental requirements anywhere in the world that are applicable to Personal Data, or its Processing, including, where applicable, European Data Protection Laws;
“Business Day” means any day other than a Saturday, Sunday or statutory holiday in the United States of America;
“Client(s)” means the agencies, advertisers and/or groups of advertisers, that purchase Advertising Inventory via DSPs and through RevAmp to place Ads on Publisher Properties, and includes, where the context requires, such potential purchasers of Advertising Inventory;
“DSP(s)” means a Client’s, or a Client’s contractor’s, demand-side platform, including the technology underlying such platform, for the automated purchase of online media inventory, including without limitation, Publisher’s Advertising Inventory;
“European Data Protection Laws” means (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (sometimes referred to as the General Data Protection Regulation) (“GDPR”); (ii) Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector (sometimes referred to as the e-privacy Directive); (iii) any regulation or other laws implementing such Directive in any member state of the European Union (“Member State”); (iv) any laws in the United Kingdom replacing any of the above on or after the time that the United Kingdom ceases to be a Member State; and (v) any modification, extension or re-enactment of any of the above from time to time in force. The terms “Controller”, “Processor”, “Process”, and “Processing” have the respective meanings ascribed to them in the GDPR;
“Intellectual Property Rights” means (a) any and all proprietary rights provided under, (i) patent law, (ii) copyright law, (iii) trade-mark law, (iv) design patent or industrial design law, or (v) any other statutory provision or common law principle applicable to this Agreement, including trade dress and trade secret law, which may provide a right in ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing;
“Malware” means any malicious code that contains or executes any viruses, Trojan horses, worms, spyware, adware, or could otherwise delay, disrupt or damage any software, computers, or websites, or enable unauthorized access to computer systems;
“Personal Data” means information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, genetic, mental, economic, cultural or social identity. For the avoidance of doubt, Personal Data includes personally identifiable information (as that term is used in the United States of America);
“Prohibited Content” means any content that: (a) contains, promotes or has links to any sexually explicit materials, obscene language, hate material, defamatory materials, materials promoting violence, the use of firearms or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other materials deemed harmful to the reputation of RevAmp in its sole discretion; (b) contains any “pop-ups” or “pop-unders” that in any way restrict the view of any advertising space; (c) promotes any software piracy systems (warez, cracking, etc.), hacking, phreaking, emulators, ROM’s, or illegal MP3 activity; (d) promotes any illegal activities, deceptive practices, violations or infringements of the Intellectual Property Rights of others; (e) includes personal web pages, FREE hosted pages, blank pages with no content, or pages that only contain advertisements; (f) promotes activities generally understood as Internet abuse, including but not limited to, the sending of unsolicited bulk electronic mail or the use of Malware or spyware; (g) is advertised or promoted by Publisher through the use of unsolicited bulk email, or allows members or customers of any Publisher Properties to engage in similar activities through the Publisher Properties, including any activities expressly or implicitly prohibited by this Agreement; or (h) any other content that is communicated by RevAmp to Publisher through any policy or guidelines as being prohibited;
“Publisher Marks” means the Publisher domain names, trademarks, service marks, and logos and other branding elements of Publisher used in the performance of this Agreement;
“Publisher Properties” means those websites, mobile sites, or applications owned and/or operated by Publisher, or for which Publisher has the authority to sell Advertising Inventory or otherwise use the Services, mutually agreed to by Publisher and RevAmp in writing in the applicable PO and as modified from time to time in writing (email will);
“Rules” means online advertising industry self-regulatory rules, codes, and guidelines, including without limitation and as applicable, the rules, codes, and guidelines of the Digital Advertising Alliance and the Network Advertising Initiative;
“Tag(s)” means scripts that communicate with servers designated by RevAmp and request transmission from those servers of Ads.
Publisher’s Advertising Inventory; Purchase Price; Services. Subject to the terms and conditions of this Agreement, Publisher agrees to sell to RevAmp, and RevAmp agrees to buy from Publisher, certain of Publisher’s Advertising Inventory, for a purchase price equal to the revenues (excluding any applicable taxes) actually collected in cash by RevAmp from the sale by RevAmp of such Advertising Inventory, less any applicable commissions or incentives, less RevAmp’s fee as detailed in the Ad Placement Details of the corresponding Advertising Placement Order; it being understood and agreed that the purchase price shall not be subject to any withholdings, retentions, or other taxes, and any taxes applicable in Publisher’s jurisdiction shall be borne by Publisher. Ancillary to the above-described sale by Publisher to Revamp of certain of its Advertising Inventory, RevAmp hereby agrees to provide the following services to Publisher (collectively, the “Services”): (a) selling advertising space for Publisher; (b) recommending advertising space layout, including without limitation, advertising placement, size and formats; (c) for advertising space on Publisher’s website(s, embedding RevAmp codes and optimizing the value of each advertising impression; (d) providing Publisher with revenue data pertaining to the previous twenty-four (24) hours of Publisher’s advertising campaigns with Revamp; and (e) providing Publisher with a performance report for all advertising campaigns executed hereunder within fifteen (15) days of the close of each month.
Implementation of Services.
Publisher hereby agrees to comply with any and all technical and implementation requirements provided by RevAmp on the RevAmp dashboard or otherwise in writing, including without limitation (i) embedding the RevAmp codes on Publisher’s website(s) in accordance with RevAmp’s instructions and not modifying the RevAmp codes in any manner, and (ii) adding RevAmp’s ‘ads.txt’ string to Publisher’s ads.txt register and any other comparable system Publisher may use from time to time in order to designate RevAmp as an authorized digital seller.
Publisher further agrees to comply with any and all third-party terms and conditions required to receive the Services, which may include, without limitation, terms for ad networks used by RevAmp (e.g. Google DoubleClick AdExchange) or terms for third-party software or technology (e.g. video players), all of which will be made available by RevAmp to Publisher for review.
Publisher hereby acknowledges and agrees that RevAmp’s ability to provide and implement the Services is dependent upon Publisher performing its responsibilities as contemplated in this Agreement.
Publisher hereby acknowledges and agrees that nothing contained in this Agreement shall prohibit, limit or in any way interfere with RevAmp’s right to provide to any other parties any products or services whether or not the same or similar to the Services.
Sensitive Information. Publisher acknowledges and agrees not to provide any ad account information, earnings data or any other RevAmp Confidential Information to any third-party engaged in providing services the same or similar to the Services.
Prohibited Actions. Publisher shall not, and shall not allow any third-party to: (a) directly or indirectly access, launch and/or activate the Services through or from, or otherwise incorporate the Services in, any software application, website or other means other than the Website(s); (b) transfer, sell, lease, syndicate, sub-syndicate or lend the Services; (c) directly or indirectly generate impressions of or clicks on Ads through any automated, deceptive, fraudulent or other invalid means (such as click spam, robots, macro Services, and Internet agents); (d) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services, RevAmpʼs then current protocol for accessing and implementing the Services, or any other RevAmp technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials, and documentation; (e) remove, deface, obscure, or alter RevAmpʼs copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the Services or any other RevAmp technology, software, materials and documentation; (f) create or attempt to create a substitute or similar service or product through use of or access to any of the Services or proprietary information related thereto; or (g) use any feature or functionality of the Services that could be used, to personally identify and/or personally track individual end users or any other persons.
Invalid Traffic (IVT) and Fraudulent Inventory. RevAmp and Publisher hereby acknowledge and agree that:
during the Term, all Advertising Inventory shall be monitored by third-party, Media Rating Council (MRC) accredited vendors or similar technology (collectively, “Monitoring Vendors”);
in the event that any of the Advertising Inventory or total impressions sold in connection with the Services hereunder is determined by any of the Monitoring Vendors to be, or to be attributable to, fraudulent, invalid, non-human traffic or served on fraudulent websites, applications or other properties (collectively, “Fraudulent Inventory”):
RevAmp shall be entitled to withhold from any payment to Publisher the amount attributable to the Fraudulent Inventory (including without limitation any refund or credit to which a corresponding purchaser of Advertising Inventory is entitled) (the “Attributable Amount”); or
in the event that RevAmp has already remitted payment to Publisher in respect of such Fraudulent Inventory, RevAmp may elect to: (A) require Publisher to provide to RevAmp, within ten (10) calendar days, a refund equal to the Attributable Amount; or (B) set off the Attributable Amount against any amounts due and payable by RevAmp to Publisher hereunder for any future accounting period.
REPRESENTATIONS, WARRANTIES, AND COVENANTS.
Mutual Representations, Warranties, and Covenants. Each of RevAmp and Publisher hereby represents, warrants, and covenants throughout the Term to the other that it:
has the authority to enter into this Agreement, that its execution of this Agreement and performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party, and that the terms and conditions hereof are binding on it;
has sufficient rights to grant any licenses granted hereunder;
will at all times comply with all Applicable Law and the Rules; and
will at all times comply with Schedule “A” attached hereto.
RevAmp Representations, Warranties, and Covenants. RevAmp hereby further represents, warrants, and covenants throughout the Term to Publisher that:
it will use commercially reasonable efforts to provide the Services in a timely manner, using all reasonable skill and care, in accordance with prevailing industry standards; and
the Services will not infringe upon any Intellectual Property Rights of any third party.
Publisher Representations, Warranties, and Covenants. Publisher hereby further represents, warrants, and covenants throughout the Term to RevAmp that:
it will not use any device, software or routine to interfere with the proper working of the Services;
its use of the Services shall at all times be in accordance with such reasonable instructions as may be communicated by RevAmp to Publisher from time to time, including any policies or guidelines of RevAmp;
Publisher, the Publisher Properties and the Publisher Marks will not infringe upon any Intellectual Property Rights of any third party;
all of the content on the Publisher Properties is legal to publish and distribute and it owns or has the legal right to use, distribute and display all content from time to time displayed on the Publisher Properties;
it will not (and will not allow any third party to) copy or duplicate the Services;
it will not deliver or permit or allow to be delivered through its computer systems any Malware to RevAmp, or any Clients or DSPs;
the Publisher Properties will not contain any Prohibited Content; and
it shall not engage in any form of non-human traffic or invalid traffic or fraudulent traffic generating methods including without limitation robots, spiders, auto-spawning browsers, auto reloading, meta refreshes or any other form of fraudulent, non-human, invalid or artificial traffic.
TERM AND TERMINATION.
Term. The term of this Agreement shall commence on the Effective Date and shall continue thereafter, unless and until terminated in accordance with this Agreement (the “Term”).
Termination for Convenience. Either Party may terminate this Agreement at any time by providing the other Party with ninety (90) calendar days’ prior written notice.
Termination Rights. In addition to any other rights of termination provided for herein, this Agreement may be immediately terminated by a Party if:
the other Party commits a material breach of its obligations hereunder that is not cured within ten (10) days after written notice thereof from the non-breaching Party;
a petition in bankruptcy or other insolvency proceeding is filed or commenced by or against the other Party, or if an application is made for the appointment of a receiver (or equivalent in any applicable jurisdiction) for the other Party of its property, or if the other Party makes an assignment for the benefit of creditors, is unable to pay its debts regularly as they become due, or ceases carrying on business in the ordinary course; or
the other Party makes or informs the terminating Party of its intention to make a claim under any of the indemnities in Section 7.3 (Indemnification) or the terminating Party reasonably considers that circumstances have arisen which will or may result in such a claim being made (such claim or potential claim being referred to in Section 4.4 as an “Indemnification Claim”).
Effects of Termination and Survival. Upon termination of this Agreement, all rights granted herein will revert to the granting Party and all licenses will terminate, and Publisher will make no further use of the Services, save in respect of Advertising Inventory sold prior to the date of termination. In addition, if this Agreement is terminated by RevAmp under Section 4.3(c), Publisher shall within twenty-four (24) hours after such termination take down and not again display or permit or allow display of all or any Advertising Materials that have resulted, or will or may result, in the Indemnification Claim. Except as otherwise provided herein, any termination of this Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to under this Agreement or at law or in equity and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
Return/Destruction of Confidential Information. Upon termination of this Agreement, each Party will return to the other Party or destroy all Confidential Information of the other Party, upon request.
Survival. The rights and obligations of the Parties set forth in this Section 4.6 and Sections 5.1, 6, 7, and 8 hereof, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination of this Agreement, will survive any such termination of this Agreement.
Intellectual Property Rights. RevAmp retains all right, title and interest in and to, and all Intellectual Property Rights embodied in, the Services. For greater certainty, Publisher gains no proprietary right, title or interest in or to the Services and has only the limited rights of use granted by RevAmp hereunder. If Publisher requests, suggests or provides customizations, modifications or specific programming to modify or improve the Services (collectively, “Modifications”), Publisher agrees that all Intellectual Property Rights in or to all such Modifications (excluding any Publisher Marks) are hereby assigned to RevAmp and shall be the exclusive property of RevAmp. Publisher agrees to sign all documents reasonably required to ensure the ownership provisions as set out above if requested by RevAmp. Subject to Publisher’s compliance with the terms and conditions of this Agreement, RevAmp agrees that Publisher has a limited, revocable, non-transferable, non-exclusive right to access and use the Services during the Term solely as provided herein.
Publisher Marks. Subject to the terms of this Agreement, Publisher hereby grants to RevAmp a non-exclusive, royalty-free, non-transferable and non-assignable license to use the Publisher Marks solely as is reasonably necessary to perform RevAmp’s obligations under this Agreement during the Term and/or to promote the Services and/or the RevAmp platform. RevAmp will use the Publisher Marks exactly in the form provided and in conformance with any trade-mark usage policies provided to it. Publisher may specify from time to time the uses of the Publisher Marks that are no longer permitted.
Advertisements. Publisher acknowledges and agrees that it does not have any rights in or title to any of the Intellectual Property Rights contained in the Advertising Materials. Publisher agrees that it will not use or permit use of the Advertising Materials or any parts thereof for any purpose other than display on the Publisher Properties as contemplated herein. Without limitation to the generality of the foregoing, Publisher may not alter Advertising Materials in any way whatsoever.
Confidential Information. From time to time during the Term of this Agreement, either Party (“Disclosing Party“) may disclose Confidential Information (as defined below) to the other Party (“Recipient“). The Recipient shall not disclose the Confidential Information other than to its Affiliates and its or their employees, officers, directors, shareholders, partners, agents, independent contractors, legal advisors, accountants and financial advisors (collectively the “Representatives“) who: (i) need access to such information for the purposes of this Agreement; (ii) are informed of its confidential nature; and (iii) are bound by written confidentiality obligations no less protective of the Confidential Information than the terms contained herein. The Recipient shall protect the Confidential Information from unauthorized use, access or disclosure using no less than a commercially reasonable degree of care. The Recipient will be responsible for any breach of this Section 6 caused by its Representatives. The term “Confidential Information” means all non-public, proprietary or confidential information of the Disclosing Party, in oral, visual, written, electronic or other tangible or intangible form, whether or not marked or designated as “confidential” and all notes, analyses, summaries, reports and other materials prepared by the Recipient or any of its Representatives that contain, are based on or otherwise reflect, to any degree, any of the foregoing. Confidential Information, in any event, may not be reverse engineered, decompiled or disassembled by Recipient. Confidential Information as used herein shall not include information that:
is or becomes generally available to and known by the public (other than as a result of the Recipient’s or its Representatives’ breach of this Agreement);
is or becomes available to the Recipient from a source other than the Disclosing Party or its Representatives, provided that such source, was not and is not bound by a confidentiality agreement regarding the Disclosing Party or its Affiliates, or otherwise prohibited from disclosing such information to the Recipient by a legal, contractual or fiduciary obligation;
was already known by or in the possession of the Recipient, as established by documentary evidence, prior to being disclosed to the Recipient by or on behalf of the Disclosing Party pursuant to this Agreement; or
has been or is independently developed by the Recipient, as established by documentary evidence, without violating any of its obligations under this Agreement or use of or reference to, in whole or in part, any of the Disclosing Party’s Confidential Information.
Disclosure Required. If the Recipient or any of its Representatives is required to disclose the Disclosing Party’s Confidential Information by Applicable Law or valid court order, the Recipient shall, if it can lawfully do so, notify the Disclosing Party of such requirements so that the Disclosing Party may seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy, and the Recipient shall reasonably assist the Disclosing Party therewith. If the Recipient remains legally compelled to make such disclosure, it shall: (a) only disclose that portion of the Confidential Information that it is required to disclose; and (b) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment.
Disclosure of Payment Terms. Publisher hereby acknowledges and agrees that Clients, or DSPs on behalf of Clients, may request disclosure from RevAmp of the terms and conditions of this Agreement, including but not limited to, revenue share and payment terms (the “Publisher Agreement Terms”). Publisher hereby agrees and consents to the disclosure by RevAmp of the Publisher Agreement Terms to any Client, or DSP, upon request.
Remedies. Each of the Parties acknowledges and agrees that any breach of this Section 6 by a Party will cause injury to the other Party for which monetary damages would be an inadequate remedy and that, in addition to remedies at law, the Disclosing Party is entitled to injunctive or equitable relief as a remedy for any such breach or threatened breach, without the necessity of proving damages or posting bond or other security for damages. This provision will not be construed to limit any other rights or remedies available to the Disclosing Party.
No Transfer of Rights, Title or Interest. Each Party hereby retains its entire right, title and interest, including all Intellectual Property Rights and all other rights, in and to all of its Confidential Information. Any disclosure of such Confidential Information hereunder shall not be construed as an assignment, grant, option, license or other transfer of any such right, title or interest whatsoever to the other Party or any of its Representatives.
LIMITATIONS OF LIABILITY; DISCLAIMERS; INDEMNIFICATION.
Limitations of Liability.
NEITHER PARTY WILL BE LIABLE, UNDER OR IN CONNECTION WITH THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, OR LOSS OF CLIENTS, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT, INDEMNIFICATION OR OTHER THEORIES OF RECOVERY, EVEN IF ANY SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCLUDING DAMAGES THAT RESULT FROM A BREACH OF SECTION 6 (CONFIDENTIALITY) OR A PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUDULENT ACTIONS, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT, INDEMNIFICATION OR OTHER THEORIES OF RECOVERY, EXCEED TWENTY-FIVE THOUSAND US DOLLARS (US$25,000.00).
Disclaimers. EXCEPT AS EXPLICITLY PROVIDED HEREIN, REVAMP MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND REGARDING THE SERVICES WHICH REVAMP MAKES AVAILABLE FOR USE “AS IS WITH ALL FAULTS”, AND EXCEPT AS EXPLICITLY PROVIDED HEREIN, REVAMP HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR FREE OPERATION, QUALITY, ACCESSIBILITY, NON-INFRINGEMENT OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE. FOR GREATER CERTAINTY, REVAMP DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL OPERATE SECURELY OR WITHOUT INTERRUPTION; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM ANY PARTY’S USE OF THE SERVICES.
Subject to Section 7.1 (Limitations of Liability), Publisher shall indemnify and hold harmless RevAmp, its Affiliates, and their respective directors, officers, employees, agents, Representatives, shareholders, successors and permitted assigns against any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred or sustained by any of them based upon or relating to third-party claims, actions, suits or proceedings related to or arising from: (i) the Publisher Properties; (ii) Publisher’s use of the Services; (iii) any actual or alleged breach by Publisher of any term, condition, representation or warranty under this Agreement; (iv) any infringement by Publisher of any Intellectual Property Rights or other rights of a third party; (v) Publisher’s gross negligence, willful misconduct or fraudulent actions; or (vi) an obligation of RevAmp to withhold, remit or administer any amount in respect of taxes owing by, on behalf of or in respect of Publisher or in respect of any activities carried on by Publisher.
Subject to Section 7.1 (Limitations of Liability), RevAmp shall indemnify and hold harmless Publisher, its Affiliates, and their respective directors, officers, employees, agents, Representatives, shareholders, successors and permitted assigns against any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred or sustained by any of them based upon or relating to third-party claims, actions, suits or proceedings related to or arising from: (i) any actual or alleged breach by RevAmp of any term, condition, representation or warranty under this Agreement; (ii) RevAmp’s gross negligence, willful misconduct or fraudulent actions; or (iii) the infringement by RevAmp of any Intellectual Property Rights or other rights of a third party. Notwithstanding the foregoing, RevAmp will have no liability for any claim to the extent it is based on Publisher’s written specifications or direction (but excluding where the claim results from the method or manner chosen by RevAmp to implement such specifications or direction), or otherwise arises solely from Publisher’s unauthorized use of the Services. In the event that the Services are held to or believed by RevAmp to infringe, RevAmp will have the option to: (x) replace or modify such item to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (y) obtain for Publisher the right to continue using such item; or (z) if both (x) and (y) are not reasonably practicable, terminate this Agreement upon written notice to Publisher.
Any claim for indemnification hereunder shall be subject to the following provisions: (i) the representations, warranties and covenants of the indemnifying Party, and the indemnified Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the indemnified Party or by reason of the fact that the indemnified Party or any of its representatives knew or should have known that any such representation or warranty is, was or might be inaccurate; and (ii) the indemnified Party shall give the indemnifying Party prompt written notice of the discovery of any state of facts or circumstances that the indemnified Party has determined could give rise to an indemnification claim under this Section 7.3. The indemnified Party’s failure to provide such notice to the indemnifying Party under this Section 7 does not relieve the indemnifying Party of any liability that the indemnifying Party may have to the indemnified Party, but in no event shall the indemnifying Party be liable for any losses that result from a delay in providing such notice.
Governing Law. Subject to Section 8.2 hereof, this Agreement shall be governed by and construed in accordance with the laws of State of Florida and the federal laws of the United States applicable therein. For the purpose of all legal proceedings, this Agreement will be deemed to have been performed in the State of Florida and the courts of the State of Florida will have the exclusive jurisdiction to entertain any action arising under this Agreement. The Parties each hereby attorn to the jurisdiction of the courts of the State of Florida in accordance with the foregoing and waive any objection to venue or any claim of inconvenient forum.
Assignment. Neither Party may transfer or assign this Agreement or its obligations under this Agreement, in whole or in part, without the prior written consent of the other Party (which consent will not be unreasonably delayed or withheld), except that a Party may assign all of its rights and obligations under this Agreement to a successor to its business or substantially all of its business (whether by sale, acquisition, merger, operation of law, or otherwise) if the successor agrees in writing to fulfill all of the assigning Party’s obligations under this Agreement. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and permitted assigns. Any purported assignment in violation of this Section shall be void.
Notices. All notices hereunder shall be in writing, and shall be given personally, by certified or registered mail, by facsimile, or electronic mail or by same day or overnight courier to the address set forth in the respective PO. Either Party may from time to time change its address for receiving notices or other communications by providing notice to the other in the manner provided in this Section. Any notice given by: (a) personal delivery will be conclusively deemed to have been given on the day of actual delivery thereof; (b) certified or registered mail will be conclusively deemed to have been given on the third (3rd) Business Day following the deposit thereof in the mail; (c) facsimile or electronic mail will be conclusively deemed to have been given on the day of transmittal thereof if given during the normal business hours of the recipient and on the Business Day during which such normal business hours next occur if not given during such hours on any day; and (d) courier will be conclusively deemed to have been given on the next Business Day following the deposit thereof with the courier.
Waiver/Severability. The waiver by either Party of a breach or right under this Agreement will not constitute a waiver of any other or subsequent breach or right. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of this Agreement, which will otherwise remain in full force and effect.
Independent Contractor. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership or agency relationship between the Parties. Neither Party has any authority of any kind to bind the other in any respect whatsoever and neither Party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other Party’s name or on its behalf.
Force Majeure. Neither Party shall be liable to the other Party for any delay or failure in performance under this Agreement arising out of a cause beyond its control and without its fault or negligence. Such causes may include, but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, acts of God, acts of regulatory agencies, or national disasters.
Entire Agreement. This Agreement, including the PO and any schedules, sets forth the entire agreement and understanding between the Parties as to the subject matter hereof and supersedes all prior discussions, agreements and understandings of any kind, and every nature between them. This Agreement shall not be changed, modified or amended except in writing and signed by both Parties.
Counterparts. This Agreement may be executed in counterparts which together shall be deemed to constitute one valid and binding agreement and delivery of the counterparts may be effected by means of a fax or electronic mail transmission.
PERSONAL DATA PROCESSING TERMS
DEFINITIONS. Terms defined elsewhere in this Agreement shall have the same respective meanings as are given them elsewhere in this Agreement. In addition, for the purposes of this Schedule, the following terms shall have the respective meanings ascribed to them as follows:
“EEA” means the European Economic Area;
“EU” means the European Union;
“Privacy Shield” means the EU-US Privacy Shield self-certification program operated by the U.S. Department of Commerce and approved by the European Commission pursuant to Decision C(2016)4176 dated July 12, 2016;
“Privacy Shield Principles” means the Privacy Shield Framework Principles (as supplemented by the Supplemental Principles) contained in Annex II to the European Commission Decision of July 12, 2016, details of which can be found at www.privacyshield.gov/eu-us-framework;
“Publisher Personal Data” means all Personal Data included in any Ad Request provided by Publisher to RevAmp under this Agreement. Such Personal Data relates to User(s) (i.e. they are the Data Subjects) and may comprise (for each Ad Request) any or all of the following: IP address; city/country/ZIP code; longitude/latitude; RevAmp’s unique ID for the Data Subject who will (or is intended to) see the Ad served as a result of the Ad Request;
“Purpose” means the purpose of performing the Services under this Agreement, including: (i), as necessary, making Publisher Personal Data available to DSPs and Clients in order that they can submit bids on Advertising Inventory; and (ii) monitoring, improving and optimising such Services (and therefore, incidentally, RevAmp’s product and service offerings);
“Standard Contractual Clauses” means the Standard Contractual Clauses for Processors, as approved by the European Commission under Decision 2010/87/EU, or such standard contractual clauses or other contractual terms as may from time to time be approved by the European Commission instead of those clauses;
“Subprocessor” means any third party (excluding employees of RevAmp but including any Affiliate of RevAmp) engaged by RevAmp to carry out on its behalf any Processing of any Publisher Personal Data under this Agreement; and
“User” means a user of or visitor to any Publisher Property.
SUBJECT MATTER, NATURE, PURPOSE AND DURATION. These Personal Data Processing Terms (in this Schedule, “these Terms”) apply in respect of all Processing of Publisher Personal Data under or in connection with this Agreement, whether by or on behalf of Publisher or RevAmp. Such Processing: (a) is automated (but any such Processing by RevAmp is initiated by Publisher submitting an Ad Request to RevAmp); (b) is for the Purpose; and (c) will continue during the Term of this Agreement and thereafter until all Publisher Personal Data Processed by RevAmp or Publisher under or in connection with this Agreement has been deleted or returned to the Controller or is no longer Processed under or in connection with this Agreement (as the case may be). These Terms will remain in effect for so long as any such Processing continues, notwithstanding any termination of this Agreement.
RELATIONSHIP BETWEEN THE PARTIES. Publisher is the Controller in respect of the Publisher Personal Data. RevAmp is a Processor which Processes the Publisher Personal Data on behalf of the Publisher.
REVAMP PROCESSING OF THE PUBLISHER PERSONAL DATA.
Processing by RevAmp. RevAmp shall:
Process the Publisher Personal Data only on documented instructions from Publisher, unless RevAmp is required to Process such data by EU or Member State law to which it is subject (in which case, RevAmp shall inform Publisher of that legal requirement before such Processing, unless that law prohibits such information on important grounds of public interest). By agreeing to these Terms, Publisher hereby instructs RevAmp to Process the Publisher Personal Data provided to RevAmp under or in connection with this Agreement, for the Purpose and in accordance with these Terms. RevAmp shall not Process the Publisher Personal Data except for the Purpose;
ensure that persons authorised to Process the Publisher Personal Data by or on behalf of RevAmp have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of Processing, as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, and comply with the other requirements of Article 32 of the GDPR;
taking into account the nature of the processing, assist Publisher by appropriate technical and organisational measures, in so far as this is possible, for the fulfilment of Publisher’s obligations as Controller to respond to requests for exercising applicable Data Subjects’ rights with respect to their Publisher Personal Data laid down in Chapter III of the GDPR (Rights of the Data Subject);
taking into account the nature of the processing and the information available to RevAmp, assist Publisher, upon Publisher’s reasonable request from time to time, in ensuring compliance with Publisher’s obligations under Articles 32 to 36 of the GDPR;
notify Publisher promptly if RevAmp becomes aware of a breach of security resulting in the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Publisher Personal Data (a “Security Incident”), provided that the provision of such notice by RevAmp shall not be construed as an acknowledgement of fault or liability with respect to any such Security Incident; and
at the choice of Publisher, delete or return all Publisher Personal Data to Publisher within thirty (30) days after the end of the provision of the Services to Publisher, and delete existing copies, unless EU or Member State law requires storage of such Personal Data.
RevAmp Subprocessors. Publisher hereby grants RevAmp general authorisation to engage Subprocessors to assist RevAmp in Processing Publisher Personal Data in accordance with these Terms. RevAmp shall enter into contractual arrangements with such Subprocessors requiring the same level of data protection compliance and information security as that provided for in these Terms. Where any such Subprocessor fails to fulfil its obligations in respect of any Publisher Personal Data, RevAmp shall remain fully liable to Publisher for the performance of such obligations. RevAmp shall inform Publisher of any intended changes concerning the addition or replacement of any such Subprocessors, thereby giving Publisher the opportunity to object to such changes.
Publisher Obligations as Controller. Publisher shall:
comply with its obligations as the Controller, under the European Data Protection Laws, in respect of all Processing of Publisher Personal Data under or in connection with this Agreement;
ensure that all instructions issued by it to RevAmp in respect of any Processing of Publisher Personal Data are lawful;
provide or ensure that there are provided to all Users to whom any Publisher Personal Data relates all notices and information concerning the Processing of their Publisher Personal Data under or in connection with this Agreement, as are required by European Data Protection Laws;
Provision of Information. If at any time so requested by RevAmp, Publisher shall promptly provide to RevAmp such information as RevAmp may reasonably require in order to demonstrate Publisher’s compliance with its obligations under these Terms. However, to avoid doubt, RevAmp is not obliged to check such compliance or to advise Publisher in relation thereto, and such compliance is exclusively Publisher’s responsibility.
PROCESSING OUTSIDE THE EEA.
Safeguards by RevAmp. Where Publisher Personal Data to the Processing of which the GDPR applies is to be Processed by or on behalf of RevAmp outside the EEA, or is to be Processed outside the EEA by any person who obtains such Publisher Personal Data from RevAmp, RevAmp shall ensure that a similar degree of protection is afforded to it as is afforded to it within the EU. RevAmp may do this by ensuring at least one of the following safeguards is implemented:
Such Processing takes place within a country that has been deemed to provide an adequate level of protection for Personal Data by the European Commission.
Such Processing is done within the United States of America by a person who is a participant in the Privacy Shield and is therefore committed to comply with the Privacy Shield Principles. RevAmp warrants that as at the Effective Date of this Agreement it is a participant in the Privacy Shield.
Such Processing is done by a person under the terms of a form of contract approved by the European Commission which gives Personal Data the same protection it has in the EU.
Other measures are taken so that a similar degree of protection is afforded to such Publisher Personal Data, as within the EU, and such Processing is lawful.
Standard Contractual Clauses. Any transfer to RevAmp by Publisher of Publisher Personal Data under or in connection with this Agreement shall be deemed to be subject to the terms of the Standard Contractual Clauses, which are hereby incorporated by reference and deemed to be made a part of these Terms in their entirety. If and to the extent that the specific details to be completed within the Standard Contractual Clauses can be imputed from the details appearing in these Terms or elsewhere in this Agreement, they shall be so imputed. If and to the extent that the specific details to be completed within the Standard Contractual Clauses cannot be so imputed, or either Party requires them to be expressly completed, the other Party shall cooperate in completing such details to the requesting Party’s reasonable satisfaction.
Conflicts of Terms. If and to the extent that the Standard Contractual Clauses (with specific details completed, as above) are inconsistent with any of these Terms, or with any other terms of this Agreement, the Standard Contractual Clauses will prevail. If and to the extent that these Terms are inconsistent with any other terms of this Agreement, these Terms will prevail.