This Agreement is entered into by and between RTBstudio LLP, a company incorporated in England and Wales with registered number OC435020 and whose registered office is 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ, ENGLAND (“RTBstudio”) 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.
These Advertiser Terms and Conditions shall apply to all Insertion Orders and this Agreement shall continue in effect for as long as there remains an active Insertion Order between RTBstudio and Advertiser and/or Agency.
By submitting an Insertion Order to RTBstudio , Advertiser engages RTBstudio to place and deliver advertising (“Ads”) across RTBstudio ’s network of publishers (the “RTBstudio Publisher Network”). Advertiser may also engage RTBstudio to provide creative editing and interactive video services (“Edit Suite”) in which case Section 16 (Edit Suite) shall apply.
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 the technical specifications and within the timeframe provided by RTBstudio . Advertiser may delegate such obligations to any Agency listed on the Insertion Order, but Advertiser shall remain responsible for the Advertising Materials delivered.
If the delivered Advertising Materials do not conform to RTBstudio’s technical specifications or do not arrive timely enough to deliver the Ad on any agreed dates according to the Insertion Order, RTBstudio , 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 event, RTBstudio may begin to charge Advertiser on the Insertion Order start date on a pro-rata basis based on the full Insertion Order for each full day that the Advertising Materials are not received.
For the term of the relevant Insertion Order, Advertiser hereby grants to RTBstudio and its publishers and other partners in the RTBstudio 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 RTBstudio 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 RTBstudio Publisher Network). Further, Advertiser and Agency acknowledge that RTBstudio may use, perform, serve and display Ads by a video or rich media content player which is proprietary to RTBstudio (“RTBstudio Media Player”) and, on occasion, via third party players used by certain publishers in the RTBstudio Publisher Network.
Title to and ownership of all intellectual property rights of any Ad and associated Advertiser intellectual property shall remain at all times with Advertiser or its third party licensors (as applicable). In addition, Advertiser agrees that RTBstudio may, during the term of this Agreement and thereafter, include Advertiser’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on RTBstudio ’s customer list and in its marketing materials and sales presentations.
Reporting on performance and delivery, including, without limitation, views or engagements of Ads is determined by RTBstudio in its sole discretion and such reporting will be used to determine the fees payable by Advertiser or Agency (as applicable) pursuant to an Insertion Order (“Controlling Measurement”).
With RTBstudio ’s prior written consent (to be provided in RTBstudio ’s sole discretion) and subject to any conditions imposed by RTBstudio , Advertiser or Agency may, at its or their cost, use a third party to track an Ad’s performance. If the Controlling Measurement is higher than the measurement by such other third party by more than 10% over the invoice period, the parties will work together in good faith to investigate and resolve such discrepancy. If the discrepancy cannot be resolved within 10 business days, Advertiser’s or Agency’s 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 the invoice based on the Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
Invoices will be sent by RTBstudio at such times as provided in the Insertion Order, or otherwise from time to time according to RTBstudio ’s normal billing procedures. Invoices will be sent to the billing address of Advertiser or Agency as applicable and as set forth in the Insertion Order. Failure by RTBstudio 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.
Payment is due within thirty (45) calendar days of the date of invoice, unless RTBstudio expressly agrees otherwise in the Insertion Order. Payments not made by the due date shall accrue interest at the rate of 1.5% per month or, if less, the highest rate permitted under applicable law. All costs of collection for overdue payments incurred by RTBstudio, including reasonable legal fees and expenses, shall be borne by Advertiser and Agency jointly and severally.
If Advertiser or Agency disputes any invoice, Advertiser or Agency must notify RTBstudio in writing within seven (7) calendar days of the date of the invoice, and any failure to do so within such seven (7) day period shall be deemed a waiver by Advertiser and Agency of any claim relating to any such disputed invoice.
If an Agency is listed on the Insertion Order, RTBstudio 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 RTBstudio ’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 this Agreement. In addition, upon the request of RTBstudio , 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. RTBstudio shall have the right to reassess the Agency’s credit to the extent Agency fails to clear 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, RTBstudio may require payment in advance.
Unless otherwise set forth in this Agreement, all fees and other amounts due under this Agreement are exclusive of sales, use, value added, GST, excise and customs duties and any other similar taxes (collectively “Transaction Taxes“). All Transaction Taxes, whether existing at present or imposed/imposable in the future, by any governmental authority arising out of such agreement shall be paid by Advertiser to RTBstudio within the agreed payment terms noted in this section of thirty (30) calendar days or the applicable law, on receipt of a valid tax invoice.
If Advertiser is required to withhold any taxes on payments to RTBstudio under this Agreement under the applicable law, such Advertiser shall withhold such amounts, pay the same to the relevant taxing authority within the time prescribed under applicable law, and promptly furnish to RTBstudio with appropriate documentation of the amounts so withheld and payment of the same to the taxing authorities, as soon as practicable.
Advertiser shall indemnify RTBstudio for the full amount of any taxes imposed by any jurisdiction which are the responsibility of such Advertiser and any liability (including penalties, in addition to tax, interest and expenses) arising therefrom or with respect thereto, whether or not such taxes were correctly or legally asserted. This indemnification shall be made within thirty (30) days from the date RTBstudio makes a written demand therefor.
All terms used in this Section 8 that appear in the Data Protection Legislation (as defined below) shall have meaning set out in that legislation. For the purposes of this Section 8, the words and expressions set out below shall have the following meanings:
“Data Protection Legislation” means the EU Data Protection Directive 95/46/EC, the Directive on Privacy and Electronic Communications 2002/58/EC, Regulation (EU) 2016/679 (“GDPR“) and any national data protection laws and regulations enacted under those directives or otherwise and any successor laws and regulations as amended from time to time.
“Personal Data” means the personal data processed in connection with the provision or receipt of services pursuant to this Agreement.
“Security Breach” means any actual or suspected, threatened or ‘near miss’ incident of theft, accidental or unlawful destruction, loss, alteration or damage, wrongful use, or unauthorised or accidental disclosure of or access to Personal Data, or other breach of this Section 8.
To the extent either party is a Controller in respect of the Personal Data (“Controller Party”), the Controller Party will at all times comply with the Data Protection Legislation.
To the extent either party is a Processor in respect of the Personal Data on behalf a Controller Party (“Processor Party”), the Processor Party:
On expiry or termination of this Agreement, the Processor Party shall immediately cease to use the Personal Data and, upon the Controller Party’s written instructions, shall ensure: (i) the prompt irretrievable deletion of the Personal Data; or (ii) return of the Personal Data (including any copies) to the Controller Party. In each case, the Processor Party shall certify in writing to the Controller Party that it no longer retains any copy of the Personal Data.
This Section 8 shall continue in effect following termination or expiry of this Agreement for so long as the Processor Party or any sub-processor retains Personal Data.
Except as expressly permitted in connection with the performance of this Agreement, each of RTBstudio and Advertiser (each, a “Receiving Party”) agrees not to disclose or use any information either designated by the other party (each, a “Disclosing Party”) as “Confidential” or an equivalent designation, or which would reasonably be deemed confidential or proprietary (“Confidential Information”) of the Disclosing Party, without the Disclosing Party’s prior written consent. No Receiving Party shall use any Disclosing Party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement. Each Receiving Party undertakes that it shall not at any time during this Agreement disclose to any person any Confidential Information, except that each Receiving Party may disclose the Disclosing Party’s Confidential Information: (a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this Agreement. Each Receiving Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the Disclosing Party’s Confidential Information comply with this Section 9. For the avoidance of doubt, RTBStudio ’s Confidential Information includes (without limitation): (a) commercial information relating to the RTBStudio Publisher Network and the RTBStudio Media Player, including information about payments, payment history, rates, pricing, metrics, measurements, targets and other specifications of any Ads or other advertising or promotional efforts; (b) all RTBStudio software, technology, programming, specifications, materials, guidelines, documentation, images and screenshots relating to any Ad; and (c) statistics and other information relating to an Ad’s performance (including the types of audiences RTBStudio can reach or the size of publishers). The term “Confidential Information” does not include information that (i) has become publicly known through no breach by Receiving Party; (ii) is independently developed without access to Confidential Information, as evidenced in writing; or (iii) is rightfully received by the Receiving Party from a third party without any confidentiality obligation.
At any time prior to the serving of the first impact of the Insertion Order, Advertiser may cancel the Insertion Order with thirty (30) calendar days prior written notice, without penalty. For clarity and by way of example, if Advertiser cancels the Insertion Order fifteen (15) calendar days prior to the serving of the first impact, Advertiser will only be responsible for the first fifteen (15) calendar days of the Insertion Order.
Upon the serving of the first impact of the Insertion Order, Advertiser may cancel the Insertion Order for any reason, without penalty, by providing RTBStudio written notice of cancellation which will be effective after the later of: (i) thirty (30) calendar days after serving the first impact of the Insertion Order; or (ii) fourteen (14) calendar days after providing RTBStudio with such written notice.
Either party may terminate this Agreement: (a) upon a breach by the other party of this Agreement upon at least twenty (20) business days’ prior written notice to such breaching party unless such breach is waived by the non-breaching party or substantively cured within such twenty-(20)-business-day period or (b) if the other party enters into liquidation or becomes insolvent or makes an assignment for the benefit of its creditors, or if a receiver is appointed for it or its assets, or if any bona fide petition is filed by or against it seeking its liquidation or an adjudication of its insolvency or its adjudication as bankrupt or the appointment of a receiver for it or its assets, subject in all cases to applicable law.
In the event that this Agreement is terminated by RTBStudio without cause or is terminated by Advertiser or Agency in accordance with the terms hereof with proper notice, Advertiser will pay RTBStudio any earned balance within thirty (30) calendar days after the end of the calendar month in which this Agreement was so terminated.
In the event RTBStudio terminates this Agreement due to any breach or other violation by Advertiser or in relation to any of Advertiser’s Ads, any payments owing by Advertiser shall be remain due and payable to RTBStudio in accordance with this Agreement. Upon termination of Insertion Orders or termination of this Agreement for any reason, Sections 6-18, inclusive, and any other provisions of this Agreement which by its terms or under circumstances are intended or would reasonably be expected to survive, shall survive termination.
RTBStudio PROVIDES ITS SITE AND THE SITES OF ITS PUBLISHERS AND OTHER PARTNERS IN THE RTBStudio PUBLISHER NETWORK, AND SERVICES (INCLUDING THE RTBStudio MEDIA PLAYER) 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 ADVERTISING MATERIALS. RTBStudio ’S SOLE OBLIGATION IN THE EVENT OF ANY INTERRUPTION OR FAILURE WILL BE TO RESTORE SERVICE AS SOON AS REASONABLY PRACTICABLE. NEITHER RTBStudio NOR ANY OF ITS AFFILIATES MAKE ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITH RESPECT TO THE RTBStudio MEDIA PLAYER, OR OTHER SERVICES PROVIDED BY RTBStudio . RTBStudio HEREBY EXPRESSLY EXCLUDES ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW, INCLUDING NONINFRINGEMENT, MERCHANTABILITY AND/OR FITNESS FOR PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, RTBStudio SHALL HAVE NO LIABILITY TO ADVERTISER, AGENCY, OR IN RELATION TO ANY OF ADVERTISER’S ADS, OF ANY KIND WHATSOEVER IN CONNECTION WITH THE USE OF THE RTBStudio MEDIA PLAYER OR THE DISPLAY OR SUBJECT MATTER OF ANY ADS. Without limiting the foregoing, RTBStudio will have no obligation, liability or other responsibility for anything related to Advertiser’s Ads, including the receipt of queries from viewers of Advertiser’s Ads or the transmission of data between the RTBStudio Publisher Network and RTBStudio . RTBStudio makes no guarantee regarding the number of views or engagements that any Ads will deliver on the RTBStudio Publisher Network, nor the timing of delivery of such views or engagements.
NEITHER PARTY EXCLUDES OR LIMITS ITS LIABILITY UNDER THIS AGREEMENT FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (B) FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER TYPE OF LIABILITY WHICH CANNOT BY LAW BE EXCLUDED OR LIMITED. IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT OR ANY EXHIBIT, SCHEDULE OR OTHER ATTACHMENT HERETO, 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 HOWEVER ARISING HEREUNDER. SUBJECT TO THE FOREGOING, RTBStudio ’S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT IS LIMITED TO THE NET AMOUNT RECEIVED BY RTBStudio UNDER THE RELEVANT INSERTION ORDER TO WHICH SUCH LIABILITY MAY ARISE. IN LIEU OF REFUND, RTBStudio 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.
Each of the undersigned parties represents, warrants and covenants that it has all necessary rights, power, and authority to enter into and perform this Agreement. 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/or Advertising Materials provided by Advertiser or Agency hereunder and any material to which users can link through such Ad (“Linked Content”). Advertiser and Agency represent, warrant and undertake 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; (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. Advertiser and Agency warrant 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 RTBStudio Publisher Network; or (f) contain technologies that foster respsawning cookies (including, but not limited to, HTML5 local storage, browser cache, zombie cookies and supercookies). Further, Advertiser and Agency agree that it shall not use any data collected from end users accessing sites in the RTBStudio Publisher Network for retargeting users or to build its own targeting segments.
Advertiser and any Agency listed in the Insertion Order on its behalf, further represent and warrant 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 this Agreement and the Insertion Order, and that all of Agency’s actions related to this Agreement and each Insertion Order will be within the scope of such agency, and Agency will defend, indemnify, and hold harmless RTBStudio , RTBStudio Affiliates and their agents and representatives from claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from Agency’s breach or alleged breach of the foregoing sentence. RTBStudio 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 RTBStudio 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 RTBStudio or any of the publishers or their sites in the RTBStudio Publisher Network. RTBStudio also reserves the right to demand third party verification for any claims made in any Ad and may terminate this Agreement in the event that such verification is not promptly provided or is unsatisfactory, as determined by RTBStudio in its sole discretion.
Each party shall indemnify, defend and hold the other party, its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (including publishers and other partners in the RTBStudio Publisher Network, syndication partners, licensors, licensees, consultants and contractors, agents and representatives) (collectively, the “Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any such Indemnified Persons, arising out of, related to or which may arise from: (a) in the case of Advertiser and/or Agency as the indemnifying party, the content or subject matter of any Ad, RTBStudio ’s authorized use of any Advertising Materials or Ads, any breach by Advertiser and/or Agency of its representations, warranties and other obligations under this Agreement, or any violation of any applicable law or any other obligations to which Advertiser and/or Agency are bound; and (b) in the case of RTBStudio as indemnifying party, RTBStudio ’s gross negligence or wilful misconduct.
This Section 16 applies if and to the extent that Advertiser engages RTBStudio to provide Edit Suite services.
RTBStudio shall use reasonable endeavours to meet any performance dates specified by Advertiser in an Insertion Order, but any such dates shall be estimates only and time for performance by RTBStudio shall not be of the essence for this Agreement. RTBStudio makes no warranties or other assurances as to the fitness for purpose of the Edit Suite services, nor that they will meet Advertiser’s requirements or produce any specific business benefits, have any particular effectiveness, nor create any revenue or other benefits.
Advertiser represents, warrants and undertakes that:
Advertiser acknowledges and agrees that RTBStudio has no responsibility or liability for Advertiser’s Ads including not limited to any rights, clearances or other compliance of the content therein. RTBStudio disclaims all responsibility and will not be liable to Advertiser for Advertiser’s Ads or any Edit Suite services performed by RTBStudio .
Advertiser shall indemnify, defend and hold RTBStudio , its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (including publishers and other partners in the RTBStudio Publisher Network, syndication partners, licensors, licensees, consultants and contractors, agents and representatives) (collectively, the “RTBStudio Indemnified Persons”) harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any such RTBStudio Indemnified Persons, arising out of, related to or which may arise from Advertiser’s breach of this Section 16 (Edit Suite) or Advertiser’s Ads.
Force Majeure. Neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including governmental action or acts of terrorism, earthquake or other acts of God, labour conditions, and power failures.
No Agency. Advertiser and Agency will not misrepresent or embellish the relationship between RTBStudio and Advertiser or RTBStudio and Agency (including by expressing or implying that RTBStudio supports, sponsors, endorses, or contributes to any charity or other cause), or express or imply any relationship or affiliation between RTBStudio and Advertiser or RTBStudio and Agency or any other person or entity except as expressly permitted by the Agreement. The relationship between RTBStudio and Advertiser and/or Agency is not one of a legal partnership relationship, but is one of independent contractors.
Governing Law. The Agreement and any non-contractual obligations arising from or in connection with it shall be governed by the laws of England and Wales. Each party irrevocably Any dispute or claim arising out of or in connection with the Agreement or any non-contractual obligation arising from or in connection with it shall be adjudicated in the courts of England and Wales located in London, England.
Non-Assignment. Advertiser and Agency may not resell, assign, or transfer any of Advertiser rights hereunder. Any such attempt may result in termination of this Agreement, without liability to RTBStudio . Notwithstanding the foregoing, RTBStudio may assign this Agreement either (x) in whole or in severable part, to any affiliate at any time without notice (including 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 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 Agreement.
Entire Agreement. This Agreement constitute the entire agreement between the parties with respect to the subject matter hereof. Any modifications to this Agreement or any such exhibit, schedule or attachment must be made in a written agreement executed by both parties. The failure to require performance of any provision shall not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. The words “includes” or “including” shall mean “includes without limitation” or “including without limitation.” If any provision herein is held unenforceable, then such provision will be modified to reflect the parties’ intention, and the remaining provisions of this Agreement will remain in full force and effect.