Last Updated July 30, 2018
This Unified Ad Marketplace Publisher Agreement (“Agreement”) is an agreement between A9.com, Inc. and Amazon Europe Core S.a r.l. (each an “Amazon Party” and, together with its Affiliates (as defined below), “Amazon,” “we,” or “us”) and you (if registering as an individual) or the entity you represent (if registering as a business) (“you”).
BY PARTICIPATING IN THE PROGRAMS SET FORTH IN THIS AGREEMENT (“PROGRAMS”) YOU AGREE TO BE BOUND BY THE TERMS HEREIN, WHICH INCLUDE THE GENERAL TERMS AND THE PROGRAM SPECIFIC TERMS. FOR CLARITY, THE GENERAL TERMS ARE APPLICABLE TO ALL OF THE PROGRAMS AND THE SPECIFIC TERMS OF EACH PROGRAM ARE ONLY APPLICABLE TO YOU IF YOU PARTICIPATE IN THAT PROGRAM.
Unified Ad Marketplace Publisher Services include various advertising Programs that enable you to display Ads on your Sites in order to monetize your advertising inventory. “Ads” means advertising content. “Sites” means Your Properties and Network Properties. “Your Properties” are properties such as websites that are owned, operated, or controlled by you. “Network Properties” are properties such as websites that are not owned, operated, or controlled by you, but on which you have a contractual right to display Ads.
- Compliance Verification; Policies. You must promptly provide us with any information that we request to verify your compliance with this Agreement. You must comply with the policies that we make available to you, including the program participation requirements (“Program Participation Requirements”), the editorial adjacencies policy (“Editorial Adjacencies Policy”) and the video policy (“Video Policy”), (collectively, “Program Policies”).
- Program Materials. We may make available certain software, sample code, application program interfaces, documentation, and related information in connection with the Programs (the “Program Materials”). We grant you a limited, revocable, non-exclusive, royalty-free, non-transferable, non-sub-licensable license to use and reproduce the Program Materials as contemplated by this Agreement. You will not (a) incorporate or compile any portion of the Program Materials into any site, application or other product other than Sites or (b) distribute or otherwise provide any portion of the Program Materials to any third party or include the Program Materials within a third party’s code, tag or wrapper. However, you may allow third parties who are providing services directly to you and who are bound by confidentiality and non-use and disclosure obligations at least as restrictive as those imposed on you under this Agreement, to access Program Materials solely as necessary for those third parties to assist you with the integration needed for your participation in the Programs. You will be responsible for any breach of this Agreement by such third party. You will not reverse engineer, disassemble, decompile or modify the Program Materials or create derivative works of the Program Materials. You will not use the Program Materials with any software or other materials that are subject to terms (e.g., open source software licenses) that, when combined with the Program Materials, would require us to disclose, license, distribute or otherwise make all or any part of such Program Materials available to anyone. You will not remove, modify, or obscure any copyright, patent, trademark or other proprietary or attribution notices on or in any Program Materials. All licenses granted to you in this Agreement are conditional on your continued compliance with this Agreement, and will immediately and automatically terminate if you do not comply with this Agreement. The Program Materials are the intellectual property of Amazon or its licensors. Except for the rights explicitly granted to you in this Agreement, all right, title and interest in and to the Program Materials are reserved and retained by us and our licensors. The Program Materials may include or be distributed with software or other materials that are provided under a separate license agreement, and that separate license will govern the use of such software or other materials in the event of a conflict with this Agreement.
- Ad Placement and Positioning. You will use all Ads in strict compliance with this Agreement and comply with the Editorial Adjacencies Policy with respect to all Ads that appear on Your Properties. For Ads shown on Network Properties, you will obtain contractual representations from all participating network publishers that such publishers will comply with the Editorial Adjacencies Policy.
- Indemnity. You will defend, indemnify and hold us, our Affiliates, and their and our Representatives, harmless from and against any loss, damage, judgment, settlement, expense, interest, and any other liability (including reasonable attorneys’ fees and costs) related to or arising out of any third party allegation, claim, lawsuit, or proceeding (a “Claim”) to the extent such Claim relates to (a) any content that appears on the Sites, (b) any breach of your representations, warranties or obligations set forth in this Agreement, and (c) any action by a third party that provides services to you in relation to this Agreement and which action would violate this Agreement if undertaken by you. You will not consent to the entry of a judgment or settle a Claim without our prior written consent. You will use counsel reasonably satisfactory to us to defend each Claim. If we reasonably determine that a Claim might adversely affect us, we may take control of the defense at our expense (and without limiting your indemnification obligations). “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity. “Representatives” means officers, directors, employees, contractors, assigns, and agents.
- Disclaimers. THE PROGRAMS, THE ADS, AND ANY PROGRAM MATERIALS ARE PROVIDED “AS IS” AND: (A) WE DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE; (B) WE DO NOT WARRANT THAT THE PROGRAMS AND ANY PROGRAM MATERIALS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS; AND (C) WE DISCLAIM AND WILL HAVE NO LIABILITY WHATSOEVER FOR ANY ADS INCLUDING ANY INDEMNITY OBLIGATIONS OR BREACHES OF REPRESENTATIONS, WARRANTIES, OR YOUR POLICIES WITH RESPECT TO ADS.
- Limitation of Liability. WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES (INCLUDING ANY BUSINESS INTERRUPTION, LOSS OF ADVERTISING FEES, PROFITS, GOODWILL, USE, OR DATA, AND THE LIKE) ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT, THE PROGRAMS, AND THE PROGRAM MATERIALS WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID TO YOU UNDER THIS AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
- Publicity and Confidentiality. You will: (a) protect and not disclose information made available by us that is identified as confidential or that reasonably should be considered confidential; and (b) use such information only to fulfill your obligations under this Agreement. Program Materials and Collected Data (as defined below) are our confidential information and may only be used or disclosed as permitted under this Agreement. You will not issue any press release or make any other public communication with respect to this Agreement.
- Trademark Usage. You grant us, our Affiliates, and each of our Representatives any and all necessary rights and permissions, on a royalty-free, worldwide basis, to use your name, trademarks, and logos, and the names of the Sites, for the purpose of fulfilling our obligations under this Agreement and for reporting and marketing purposes.
- Data Restrictions
- Use and disclosure of Your Data. We may use Your Data for our internal purposes. We may only disclose Your Data to third parties in connection with this Agreement, including to provide ad requests and reports to applicable advertisers. “Your Data” means your pre-existing data that you provide to us for a given impression, including ad requests. For the avoidance of doubt user related information that you may send us or that we may collect such as an advertising- specific identifier, a full IP address or Precise Location Data is not Your Data. “Precise Location Data” means data obtained from a device that is sufficiently precise to locate such device.
- End User Information. You represent and warrant that you will not provide us with any Personal Information other than an advertising-specific identifier that can be reset for a device (e.g., Android Advertising ID, IDFA), Precise Location Data, and full IP address. For the avoidance of doubt, you will not provide us with any device identifier that cannot be reset. You represent and warrant that you will only provide us Precise Location Data if you have obtained Consent from the applicable end user to provide such data to us and to third parties to whom we may send Precise Location Data. “Personal Information” means data which, alone, or when combined with other information can be used by either party to identify a person. “Consent” means a user’s action as required under applicable Laws (e.g., through a privacy notice, affirmative opt-in, or other disclosures as required by applicable Laws).
- Additional provisions regarding EU Data. You and Amazon Europe Core S.a r.l. (“AEC”) (or duly designated Amazon Affiliate) will independently determine the purposes and means of your and AEC’s respective processing of EU Data for which you and AEC are each data controller. “EU Data”means personal data within the meaning of applicable Laws of the European Economic Area, including the General Data Protection Regulation (Regulation (EU) 2016/679) and any implementation or successor thereof, which is collected, used, transferred, or processed as a result of the parties’ activities under this Agreement. “Laws” means all laws (including international, national, federal, and state laws and regulations) and ordinances.
- Compliance with Laws. You will comply with all Laws which are applicable to the performance of your obligations under this Agreement. You represent and warrant that you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union (the “EU”) or its member states, or other applicable government authority.
- COPPA; Self-Regulatory Principles. You represent and warrant that you will not send us ad requests from Children’s Sites. You represent and warrant that you will not send us ad requests from Sites when the user is known by you to be under 13 years of age. You will comply with the Digital Advertising Alliance’s (DAA) Self-Regulatory Principles for Online Behavioral Advertising (for U.S. ad inventory), the IAB Europe EU Framework for Online Behavioural Advertising (for EU ad inventory), and the Japan Interactive Advertising Association’s Guidelines for Behavioral Advertising (for Japan ad inventory). “Children’s Sites” are Sites directed toward children under 13 years of age (as defined by COPPA). “COPPA” means the Children’s Online Privacy Protection Act of 1998, as amended, and the rules and regulations promulgated thereunder.
- Disputes and Applicable Law. Any dispute or claim relating in any way to the Programs or this Agreement will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the State of Washington, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and us regarding this Agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent, Corporation Service Company, 300 Deschutes Way SW, Suite 304, Tumwater, WA 98501. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than USD$10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Notwithstanding anything to the contrary in this Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights.
- Modification. We may modify any of the terms and conditions contained in this Agreement at any time and in our sole discretion by posting the revised terms online. Such changes will be effective as of the date we post them, unless we specify a different effective date. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued use of any Program after any changes take effect will constitute your acceptance of all applicable changes.
- Term and Termination. The term of this Agreement will begin upon your participation in any Program and will continue until you or we terminate it. Either party may terminate this Agreement at any time, with or without cause, and immediately upon providing written notice of termination to the other party. We may suspend your use of any Program at any time. The following provisions of this Agreement will survive termination of this Agreement: Sections 4 through 12, 14, and 15 of the General Terms; and Sections 3 and 5 of the Unified Ad Marketplace Program Specific Terms.
- Miscellaneous. You represent and warrant that you have all necessary rights to enter into this Agreement. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without our prior written consent. We may assign this Agreement (or any of our rights and obligations under this Agreement): (a) to any of our Affiliates; or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of our assets or any similar transaction. This Agreement will be binding upon, inure to the benefit of, and be enforceable by the parties and their respective successors and assigns. This Agreement includes all Program Policies. This Agreement will constitute the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of this Agreement. Any notice or other communication to be given hereunder will be in writing and given: (a) by us via email, via a posting, or via a message through your account; or (b) by you via email to [email protected], or to such other email or physical addresses as we may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted. Whenever used in this Agreement, unless otherwise specified, the terms “including,” “e.g.,” and other similar terms are deemed to include the term “without limitation” immediately thereafter. Each Amazon Party is severally liable for its own obligations under this Agreement and is not jointly liable for the obligations of other Amazon Parties. The parties will perform under this Agreement as independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, employment, or any other relationship between us and you. You will not represent yourself to be an employee, representative, or agent of us. You will have no authority to enter into any agreement on our behalf or in our name or otherwise bind us to any agreement or obligation.
I. THE UNIFIED AD MARKETPLACE PROGRAM SPECIFIC TERMS
- Description of the Unified Ad Marketplace. Unified Ad Marketplace (“UAM”) is a Program that allows you to incorporate Ads made available through the UAM Program on Sites in connection with advertising campaigns of advertisers (which may be us or a third-party advertiser, e.g. supply side platforms who purchase advertising inventory on the Sites through UAM pursuant to an agreement with us), in order to earn advertising fees paid by us.
- Removal of Ads; Modification of Ads. You will remove any Ads from the Sites within 24 hours after notice by us and, for Ads that appear on Sites in violation of the Editorial Adjacency Policy, within 24 hours after the earlier of: (a) notice by us; or (b) discovery by you. You will not edit or modify the Ads in any way.
- Payment of Advertising Fees. The advertising fees will be determined solely by us and will be based on our numbers. We will pay you within 60 days following the end of the calendar month in which advertising fees were earned. We will not pay you for (a) impressions generated through automated or other invalid means, (b) Ads that are not properly displayed by you, or (c) Ads placed in violation of the Program Policies. If you violate this Agreement, then, in addition to any other rights or remedies available to us, we reserve the right to withhold any and all fees otherwise payable to you under this Agreement. Payments will be made in USD or any other currency agreed in advance between the parties. The exchange rate (if applicable) will be based on the data supplied to us by Bloomberg (or a similarly reputable provider if we decide to change it) in the form of average monthly exchange rate for a given month. If applicable, we may deduct any currency conversion fees paid in connection with currency exchange.
- Taxes.You may charge and we will pay applicable national, state, or local sales or use taxes, or value added taxes that you are legally obligated to charge (“Taxes”), provided that such Taxes are stated on the original invoice that you provide to us and your invoices state such Taxes separately and meet the requirements for a valid tax invoice. We may provide you with an exemption certificate or equivalent information acceptable to the relevant taxing authority, in which case, you will not charge and/or collect the Taxes covered by such certificate. We may deduct or withhold any taxes that we may be legally obligated to deduct or withhold from any amounts payable to you under this Agreement, and payment to you as reduced by such deductions or withholdings will constitute full payment and settlement to you of amounts payable under this Agreement. Throughout the term of this Agreement, you will provide us with any forms, documents, or certifications as may be required for us to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.
- Use and Disclosure of Collected Data by You. You will not use or disclose Collected Data for any purpose other than to perform your obligations under these Unified Ad Marketplace Program Specific Terms. For the avoidance of doubt, you will not: (a) use Collected Data to (i) retarget a user (ii) append data to a user’s non-public profile or (iii) to improve Ad targeting for you or any other advertiser; or (b) disclose Collected Data to any third party. Notwithstanding the above, you may disclose Collected Data to third parties on an Aggregated and Anonymous basis, provided that such third parties are bound by confidentiality and non-use and disclosure obligations at least as restrictive as those imposed on you under this Agreement. You will be responsible for any breach of this Agreement by such third party. “Aggregated and Anonymous”means a form in which Collected Data is combined with data from numerous other advertisers, provided that Collected Data will not exceed 10% of the total amount of that combined data and such combined data precludes identification, directly or indirectly, of us, end users, our advertisers, brand, product, context, or category. “Collected Data” means all data and information related to the performance of the parties under this Agreement, including Ad response data (such as Ad content, Ad category, and the fact that we delivered an Ad to a specific user) and Ad performance data (such as number of impressions and clicks for an Ad, interactions, and header information), but excluding Your Data.
- Ad Placement and Positioning.
- Compliance with Ad Requirements.Ads will run solely on Sites that are approved by us in advance.
- No Pop-ups; Video Ads.You will not deliver any Ad on or within any pop-up or pop-under windows. The sound of video Ads may not be muted by the video player or by you. You will comply with the Video Policy with respect to all Ads that appear on Your Properties.
- Ad Integration.You will enable our ad integration mechanism on your Sites pursuant to the applicable Program Materials in order to send us ad requests. If, following an ad request, we determine that we will respond, we will send an ad response that will include a price point within the range we established.
II. THE TRANSPARENT AD MARKETPLACE PROGRAM SPECIFIC TERMS
- Description of the Transparent Ad Marketplace. Transparent Ad Marketplace (“TAM”) is a Program that allows you to connect with TAM Buyers to place Programmatic Ads on the Sites in order to earn advertising fees paid by the TAM Buyer. “TAM Buyer” means a third party (e.g. supply side platforms) who purchases advertising inventory on the Sites through TAM pursuant to an agreement with you (“TAM Buyer Direct Agreement”).
- Payment of Advertising Fees. You agree that you will receive payment from TAM Buyers directly for Ads placed on Sites pursuant to these TAM Program Specific Terms. We will not make any payment for Ads placed on Sites pursuant to these TAM Program Specific Terms. We are not a party to, and will have no liability under or obligation to comply with, the TAM Buyer Direct Agreements. Each party will be responsible, as required under applicable Laws, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under these TAM Program Specific Terms.
- Use and Disclosure of Data by Us. Your Data that we may provide to TAM Buyers will be provided under no restriction. It is your sole responsibility to insert the data restrictions that you deem appropriate in the TAM Buyer Direct Agreement and to ensure that TAM Buyers comply with these restrictions.