The following terms and conditions (“Advertiser Terms and Conditions”) govern the placement and delivery of advertising (“Ad”) as set forth in the Insertion Order submitted by the Advertiser. The Advertiser Terms and Conditions and any associated Insertion Order or Insertion Orders are collectively referred to herein as the “Advertiser Agreement”.
This Agreement is entered by and between Unruly Group Limited, a company incorporated in England and Wales with registered number 05411297 and whose registered office is The White Chapel Building, 15 Whitechapel High Street, London E1 8QS, United Kingdom (“Unruly”) or any of Unruly’s affiliates, including without limitation Unruly Media Inc., Unruly Media AB, Unruly Media AS, Unruly Media GmbH, Unruly Media Pte Ltd, Unruly Media Pty Ltd, Unmedia Video Distribution Sdn Bhd and any other subsidiary of Unruly Holdings Limited now existing or hereafter formed (individually and collectively, “Unruly Affiliates”) and the company named as advertiser in the Insertion Order (“Advertiser”) and/or the agency listed in the Insertion Order for such Advertiser (“Agency”), if any.
For the mutual promises contained herein and other good and valuable consideration, receipt and adequacy of which are hereby acknowledged, Unruly and Unruly Affiliates, on the one hand, and the Advertiser and/or Agency, on the other hand, agree as follows:
Invoices will be sent by Unruly at such times as provided in the Insertion Order, or otherwise from time to time according to Unruly’s normal billing procedures. Invoices will be sent to the billing address of the Advertiser or Agency, as applicable and as set forth in the Insertion Order. Failure by Unruly for whatever reason to send a timely invoice will not affect Advertiser’s obligation to pay for any Ads placed in accordance with the Insertion Order.
- Terms of Payment
Payment is due within thirty (30) calendar days following the date of invoice, unless Unruly expressly agrees otherwise in the Insertion Order. Payment not made within five (5) business days of the due date shall accrue interest at the rate of 1.5% per month, or if less, the highest rate permitted under law. All costs of collection, including reasonable legal fees and expenses, incurred by Unruly shall be borne by the Advertiser. The Advertiser shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Advertiser Agreement, except for income taxes.
- Payment Liability
In the case of any Agency listed on the Insertion Order, Unruly will hold Agency and Advertiser jointly and severally liable for payments. Should sums not have been cleared to Agency, Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis. Upon Unruly’s request, Agency will make available written confirmation of the relationship between Agency and Advertiser. Such confirmation will include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the Insertion Order and confirm these Advertiser Terms and Conditions. In addition, upon the request of Unruly, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the Insertion Order. Agency’s credit is established on a client-by-client basis. Unruly shall have the right to reassess the Agency’s credit to the extent Agency fails to clear the Advertiser’s proceeds including in relation to the credit of other advertisers’ that may be represented by such Agency. If Advertiser’s or Agency’s credit is or becomes impaired, Unruly may require payment in advance.
- Delivery of Advertising Materials
The Advertiser will, at its sole cost and expense, create and deliver all video, rich media creative and/or other advertising materials required for any Ad (“Advertising Materials”) according to technical specifications provided by Unruly or Unruly Affiliates. With limited exceptions, such Advertising Materials will be served or displayed by a video or rich media content player which is proprietary to Unruly (“Unruly Media Player”). The Advertiser may delegate such obligations to any Agency listed on the Insertion Order, but shall remain responsible for the Advertising Materials delivered. If the delivered Advertising Materials do not conform to Unruly’s technical specifications or do not arrive timely enough to deliver the Ad on any agreed dates according to the Insertion Order, then Unruly, in its sole discretion, may: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after (i) the non-conforming Advertising Materials are corrected, or (ii) the late-arriving Advertising Materials are received; in any case, Unruly may begin to charge the Advertiser on the Insertion Order start date on a pro rata basis based on the full Insertion Order for each full day the Advertising Materials are not received.
- Advertiser and Agency Representations and Warranties
The Advertiser, and any Agency listed on the Insertion Order on its behalf, is responsible for any liability arising out of or relating to any Ad and Advertising Materials provided by the Advertiser or Agency hereunder and any material to which users can link through such Ad (“Linked Content”). The Advertiser and/or Agency represents and warrants that no part of the Ad, Advertising Materials or Linked Content will: (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; (c) be defamatory or libellous; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. The Advertiser and/or Agency warrants that it will not use tracking or targeting pixels or similar technologies in order to track and/or create profiles for end users accessing sites in the Unruly publisher network. Further, the Advertiser and/or Agency agrees that it shall not use any data collected from end users accessing sites in the Unruly publisher network for retargeting users or to build its own targeting segments.
The Advertiser, and any Agency listed on the Insertion Order on its behalf, further represents and warrants that the product or service that is being promoted through any campaign hereunder is not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities. Further, Agency, if any is listed in the Insertion Order, represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Advertiser Terms and Conditions and the Insertion Order, and that all of Agency’s actions related to these Advertiser Terms and Conditions and each Insertion Order will be within the scope of such agency, and Agency will defend, indemnify, and hold harmless Unruly, Unruly Affiliates and its and their affiliates and representatives from claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from Agency’s alleged breach of the foregoing sentence. Unruly reserves the right to reject or remove the placement of any Ad (or any part of any associated Advertising Materials) or URL link embodied within an Ad at any time in the event Unruly determines in its sole reasonable discretion that such Ad or Linked Content does not meet its standards or comply with the Insertion Order or with any applicable law, rules, regulation, industry guidelines or policies, or other judicial or administrative order, or that such Ad (or associated Advertising Materials) or Linked Content is unlawful or inappropriate or may tend to bring, disparagement, ridicule, or scorn upon Unruly or any of the Unruly Affiliates or any of the publishers or their sites in the Unruly publisher network. Unruly also reserves the right to demand third party verification for any claims made in any Ad and to terminate this Advertiser Agreement in the event that such verification is not promptly provided or is unsatisfactory, in Unruly’s sole discretion.
For the term of this Advertiser Agreement, the Advertiser hereby grants to Unruly and any and all Unruly Affiliates and its and their publishers and other partners in their Unruly publisher network a non-exclusive, royalty-free, worldwide license to (a) use, perform and display any Ad (and associated Advertising Materials) delivered hereunder in accordance with the terms of the Insertion Order, and (b) use all associated Advertiser intellectual property in connection therewith. Without limiting the foregoing, Advertiser and Agency acknowledge that Unruly and Unruly Affiliates may distribute and place Ads across a blend of online media to deliver mass reach, response and niche contextual placements including but not limited to branded websites and blogs, gaming, widgets and similar applications on social networking platforms such as Facebook, mobile apps, devices and similar environments, rewarded entertainment and e-retail sites, and video and rich media search engines, and the rights granted hereunder shall cover and permit any and all such channels and uses (which shall be deemed to be part of the Unruly publisher network). Further, Advertiser and Agency acknowledge that Unruly and Unruly Affiliates may use, perform and display Ads on its Unruly Media Player and, on occasion, via third party players used by certain publishers in its publisher network. Title to and ownership of all intellectual property rights of any Ad and associated Advertiser intellectual property shall remain with the Advertiser or its third party licensors. In addition, the Advertiser agrees that Unruly and the Unruly Affiliates may, during the term of this Advertiser Agreement and thereafter, include the Advertiser’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on Unruly’s or any Unruly Affiliate’s customer list and in its marketing materials and sales presentations.
- Reporting; Tracking
Unruly will provide Advertiser and/or the Agency listed on the Insertion Order, if any, with access to its social video platform to view reports on performance and delivery of the Ads being placed according to the Insertion Order. Reporting on performance and delivery, including without limitation views or engagements of Ads is handled by Unruly based on its numbers and measurement processes as determined in its sole discretion. Such measurement processes will also be used for invoicing advertising fees under an Insertion Order (“Controlling Measurement”). Unruly’s social video platform uses UTC. Once Unruly has provided the reporting on the social video platform, Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Unruly’s invoice for such period. The Advertiser or Agency may, at its or their cost, use a third party to track an Ad upon Unruly’s prior written consent, which shall be given or withheld in Unruly’s sole discretion. Unruly may condition any consent upon Advertiser or Agency agreeing to use an established and reputable ad tracking mechanisms and services that it may approve in its sole determination. If the Controlling Measurement is higher than the measurement by such other third party ad tracking mechanism by more than 10% over the invoice period, the parties will facilitate a reconciliation effort between Unruly and third party measurement mechanism. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, the Advertiser or Agency sole right and remedy shall be either to (a) consider the discrepancy an under-delivery to be remedied by a makegood flight, where delivery of such makegood will be measured by such third party ad tracking mechanism, or (b) pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
- Unruly’s proprietary social video platform
Unruly’s proprietary social video platform is accessible via a Web gateway page at its unruly.co site (or at such other URL as Unruly may designate). To access it, Advertiser, any listed Agency (if any) and its or their representatives may be required, individually or as a group, to create and use a log-in ID and password (“Log-In Information”). All Log-In Information shall be kept confidential and not shared with any third parties. Unruly has no obligation or responsibility with regard to use, distribution, disclosure, or management of Log-In Information or access and use of its proprietary social video platform.
- DISCLAIMER OF WARRANTIES
UNRULY AND UNRULY AFFILIATES PROVIDE THEIR SITE AND THE SITES OF ITS AND UNRULY AFFILIATES’ PUBLISHERS AND OTHER PARTNERS IN THE UNRULY PUBLISHER NETWORK, AND ALL OF ITS AND THEIR SERVICES, AS PERFORMED OR CONTEMPLATED HEREUNDER OR UNDER ANY INSERTION ORDER, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD OR UNRULY PLAYER, UNRULY’S AND ANY UNRULY AFFILIATES’ SOLE OBLIGATION WILL BE TO RESTORE SERVICE AS SOON AS REASONABLY PRACTICABLE. EACH OF UNRULY AND EACH UNRULY AFFILIATE DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE AND WE HEREBY EXPRESSLY EXCLUDE ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW.
- LIMITATIONS OF LIABILITY
IN NO EVENT SHALL UNRULY OR ANY UNRULY AFFILIATE BE LIABLE BE LIABLE UNDER THIS ADVERTISER AGREEMENT WHETHER IN TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE FOR ANY LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS ADVERTISER AGREEMENT INCLUDING ANY INSERTION ORDER (EVEN IF UNRULY OR SUCH UNRULY AFFILIATE WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING). UNDER NO CIRCUMSTANCES SHALL UNRULY AND UNRULY AFFILIATES TOGETHER BE LIABLE TO THE ADVERTISER, AGENCY OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY THEM UNDER THE RELEVANT INSERTION ORDER IN RELATION TO WHICH SUCH LIABILITY MAY ARISE. IN LIEU OF REFUND, UNRULY AND/OR UNRULY AFFILIATES SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, IF THE “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
At any time prior to the serving of the first impact of the Insertion Order, the Advertiser may cancel the Insertion Order with 30 days prior written notice, without penalty. For clarity and by way of example, if the Advertiser cancels the Insertion Order 15 days prior to the serving of the first impact, the Advertiser will only be responsible for the first 15 days of the Insertion Order. Upon the serving of the first impact of the Insertion Order, the Advertiser may cancel the Insertion Order for any reason, without penalty, by providing Unruly written notice of cancellation which will be effective after the later of: (i) 30 days after serving the first impact of the Insertion Order; or (ii) 14 days after providing Unruly with such written notice. In addition to any other remedies that may be available to it, Unruly may immediately terminate the Advertiser Agreement in the event of any breach by the Advertiser of the representations and warranties contained herein or non-performance of any of its obligations hereunder. Notwithstanding anything to the contrary contained herein, these Advertiser Terms and Conditions shall continue in effect so long as there remains an active Insertion Order. Upon expiration or termination of this Advertiser Agreement or in relation to any terminated or completed Insertion Order, the last sentence of Sections 1 and Sections 2, 3 and 5, the last sentence of Section 6 and Sections 9 through 14 inclusive, and any other provisions of the Advertiser Agreement which by its terms are intended or reasonably expected to survive, shall survive termination.
Each of the Advertiser and any Agency agrees to indemnify, defend, and hold harmless Unruly and Unruly Affiliates and its and their affiliates, directors, officers, agents and representative and its and their publishers and other partners in the Unruly publisher network for and from any claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of (a) the acts or omissions or breach of this Advertiser Agreement by the Advertiser or such Agency as applicable (including Advertiser’s Representations and Warranties set forth above), (b) the content or subject matter of any Ad or Advertising Materials, or (c) any violation of any applicable laws, rules, regulations, industry guidelines or policies, including without limitation relating to any end user or other data that it may collect or have collected in relation to the Ads placed according to the Insertion Order. Unruly agrees to indemnify, defend, and hold harmless the Advertiser for any claims, liabilities, costs and expenses (including reasonable legal fees) made against the Advertiser by a third party or parties as a result of acts of gross negligence or wilful misconduct by Unruly.
- Confidential information
“Confidential Information” shall mean any and all oral or written information that is identified as confidential and is provided by one party to the other. Neither the Advertiser nor Unruly shall disclose or use the other party’s Confidential Information for any purpose other than the purposes contemplated by this Advertiser Agreement, unless such disclosure or use is allowed by written permission of the other party. Notwithstanding any other provisions hereof, either party may disclose the other party’s Confidential Information to the extent required by applicable law, but only after five (5) business days prior written notification to the other party of such required disclosure. In the case of Unruly’s Confidential Information, each of Advertiser and Agency acknowledges that Unruly and Unruly Affiliates work with and will place the Ads on third party publishers’ websites and sub-networks within the Unruly publisher network. The identities of the publishers in the Unruly publisher network are considered Unruly’s and Unruly Affiliates’ Confidential Information, and each of Advertiser and Agency agrees not to disclose or use such proprietary information other than in connection with engaging and working with Unruly under this Advertiser Agreement. Upon termination, cancellation or expiration of this Advertiser Agreement for any reason, or upon request by either party, all Confidential Information of the requesting party, together with any copies thereof, shall be returned to that party or certified destroyed, except that the parties may retain any electronic versions of any Confidential Information of the other party solely for archival or litigation purposes. The Advertiser’s Confidential Information shall remain the property of the Advertiser, and Unruly’s Confidential Information shall remain the property of Unruly.
This Advertiser Agreement, including these Advertiser Terms and Conditions and associated Insertion Order(s), sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a written addendum signed by both parties may change this. This Advertiser Agreement will be governed and construed in accordance with the laws of England and Wales. The Advertiser and Unruly agree to submit to the exclusive jurisdiction of the courts of England and Wales. If any provision of this Advertiser Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The Advertiser may not assign this Advertiser Agreement without the prior written consent of Unruly. Unruly may freely assign this Advertiser Agreement either (x) in whole or in severable part, to any Unruly Affiliate at any time without notice (including without limitation such that the assigning entity has no further rights and obligations and the assignee entity assumes all rights and obligations or such that both the assignee and assignor have full rights and obligations severally under this Advertiser Agreement) or (y) in connection with any corporate reorganization, stock purchase, merger, or sale of all or substantially all of the business and assets associated with the subject matter of the Advertiser Agreement. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns. Unruly Affiliates shall be third party beneficiaries under this Advertiser Agreement including each Insertion Order and other than the Unruly Affiliates there are no third party beneficiaries. The parties to this Advertiser Agreement are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Advertiser Agreement. This Advertiser Agreement may be executed by electronic signature (including click wrap) or by facsimile, and may be executed in counterparts.