Activation Services Agreement
“Ad” means any advertisement provided to Resonate.
“Advertiser” means the advertiser for which Agency is the agent under an applicable Order Form.
“Advertising Materials” means artwork, copy, or active URLs for Ads.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Agency” means the advertising agency listed on the applicable Order Form.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis.
“CPC Deliverables” means Deliverables sold on a cost per click basis. “CPL Deliverables” means Deliverables sold on a cost per lead basis.
“CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
“Customer” means Agency and Advertiser. Unless otherwise noted herein, both Agency and Advertiser shall be jointly and severally liable for performance hereunder.
“Deliverable” or “Deliverables” means the inventory delivered by Resonate (e.g., impressions, clicks, or other desired actions).
“eCPM Deliverables” means Deliverables sold on a maximum cost per thousand impression basis.
“Order Form” means a mutually agreed insertion order that incorporates these Terms, under which Resonate will deliver Ads for the benefit of Customer.
“Resonate” means the managed service provider listed on the applicable Order Form.
“Network Properties” means websites specified on an Order Form that are not owned, operated, or controlled by Resonate, but on which Resonate has a contractual right to serve Ads.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Resonate’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means the Network Properties.
“Terms” means these Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, based on IAB Version 3.0.
“Third Party” means an entity or person that is not a party to an Order Form; for purposes of clarity, Resonate, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
I. ORDER FORM AND INVENTORY AVAILABILITY
a. Order Form Details. From time to time, Resonate and Customer may execute Order Forms that will be accepted as set forth in Section I(b). As applicable, each Order Form will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the Order Form, (iv) the start and end dates of the campaign, and (v) the identity of and contact information for any Third Party Ad Server. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
b. Availability; Acceptance. Resonate will make commercially reasonable efforts to notify Customer within two (2) business days of receipt of an Order Form signed by Customer if the specified inventory is not available. Acceptance of the Order Form and these Terms will be deemed the earlier of (i) written (which, unless otherwise specified, for purposes of these Terms, will include paper, fax, docusign or e-mail communication) approval of the Order Form by Resonate and Customer, or (ii) the display of the first Ad impression by Resonate, unless otherwise agreed on the Order Form. Notwithstanding the foregoing, modifications to the originally submitted Order Form will not be binding unless approved in writing by both Resonate and Customer.
c. Revisions. Revisions to accepted Order Forms will be made in writing and acknowledged by the other party in writing.
II. AD PLACEMENT AND POSITIONING
a. Compliance with Order Form. Resonate will comply with the Order Form, including all Ad placement restrictions, and, except as set forth in Section VI(c), will create a reasonably balanced delivery schedule. Any exceptions will be approved by Customer in writing.
b. AD Specifications. Resonate will submit or otherwise make electronically accessible to Customer final technical specifications within two (2) business days of the acceptance of an Order Form. Changes by Resonate to the specifications of already-purchased Ads after that two (2) business day period will allow Advertiser to suspend delivery of the affected Ad for a reasonable time (without impacting the end date, unless otherwise agreed by the parties) in order to (i) send revised Advertising Materials; (ii) request that Resonate resize the Ad at Resonate’s cost, and with final creative approval of Customer, within a reasonable time period to fulfill the guaranteed levels of the Order Form; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the affected placement without penalty.
III. PAYMENT AND PAYMENT LIABILITY
a. Invoices. Unless otherwise specified in the Order Form, the initial invoice will be sent by Resonate upon completion of the first month’s delivery, or within 30 days of completion of the Order Form, whichever is earlier. Invoices will be sent to Customer’s billing address as set forth on the Order Form and will include information reasonably specified by Customer, such as the Order Form number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the Order Form. All invoices (other than corrections of previously provided invoices) pursuant to the Order Form will be sent within 90 days of delivery of all Deliverables. Resonate acknowledges that failure by Resonate to send an invoice within such period may cause Agency to be contractually unable to collect payment from the Advertiser. If Resonate sends the invoice after the 90-day period and the Customer either has not received the applicable funds from the Advertiser or does not have the Advertiser’s consent to dispense such funds, Customer will use commercially reasonable efforts to assist Resonate in collecting payment from the Advertiser or obtaining Advertiser’s consent to dispense funds. Resonate should invoice Customer for the services provided on a calendar-month basis with the net cost (i.e., the cost after subtracting Agency commission, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the Order Form, as specified on the applicable Order Form. The parties acknowledge that the fees charged in the Order Form and invoiced by Resonate shall be allocated to Software, Data, Activation and MS/PS in accordance with Resonate’ s revenue recognition policy.
b. Payment Date. Unless otherwise stated on the Order Form Customer will make payment 30 days from its receipt of invoice. Resonate may notify Customer that it has not received payment in such 30-day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Resonate may do so five (5) business days after providing such notice.
c. Payment Liability. Unless otherwise set forth by Customer on the Order Form, Resonate shall hold both Advertiser or Agency liable for payments until Resonate has received payment. If Customer fails to provide payment in accordance with the Order Form, Resonate reserves the right to seek payment from either Advertiser or Agency. Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis. Upon request, Advertiser or Agency will make available to Resonate written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the Order Form and these Terms. In addition, upon the request of Resonate, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the Order Form. If Advertiser’s or Agency’s credit is or becomes impaired, Resonate may require payment in advance.
a. Confirmation of Campaign Initiation. Resonate will, within two (2) business days of the start date on the Order Form, provide confirmation to Customer, either electronically or in writing, stating whether the components of the Order Form have begun delivery.
b. Resonate Reporting. If Resonate is serving the campaign, Resonate will make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified on the Order Form. The parties agree and acknowledge that Customer shall be provided access to and use of specific modules, services and features offered through Resonate’s proprietary platform of servers, software and technology that is hosted, served, or managed by Resonate or Resonate’s third-party service provider and furnished to Customer (“Platform”). Specifications as to Platform modules, services and the features available to Customer will be identified on the Order Form, and will be based on which edition of the Platform to which Customer subscribes. All use of the Platform by Customer is governed by Resonate’s standard terms and conditions, which can be found at www.resonate.com/resonate-subscription-agreement/. (“Resonate Subscription Agreement”). In the case of any conflict in these terms and those in the Platform Standard Terms, the Platform Standard Terms shall take precedence relating to use of the Platform only. Once Resonate has provided the online or electronic report, it agrees that Customer is entitled to reasonably rely on it, subject to provision of Resonate’s invoice for such period.
V. CANCELLATION AND TERMINATION
a. Without Cause. Unless otherwise specified in the Order Form, Customer may not terminate an Order Form without cause. Resonate may terminate an Order Form at any time for any reason or no reason.
b. For Cause. Either Resonate or Advertiser may terminate an Order Form at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Agency and/or Advertiser) and receives timely notice of each such breach, even if Agency or Advertiser cures such breaches, then Resonate may terminate the Order Form or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Resonate to Customer, then Resonate may terminate the Order Form and/or placements associated with such breach upon written notice.
VI. ORDER FORM MAKEGOODS
a. Notification of Under-delivery. Resonate will monitor delivery of the Ads, and will notify Customer either electronically or in writing as soon as possible (and no later than 14 days before the applicable Order Form end date unless the length of the campaign is less than 14 days) if Resonate believes that an under-delivery is likely. In the case of a probable or actual under-delivery, Customer and Resonate may arrange for a makegood consistent with these Terms.
b. Makegood Procedure. If actual Deliverables for any campaign fall below guaranteed levels, as set forth on the Order Form, and/or if there is an omission of any Ad (placement or creative unit), Customer and Resonate will use commercially reasonable efforts to agree upon the conditions of a makegood flight, either on the Order Form or at the time of the shortfall. If no makegood can be agreed upon, Customer may execute a credit equal to the value of the under-delivered portion of the Order Form for which it was charged. If Customer has made a cash prepayment to Resonate, specifically for the campaign Order Form for which under-delivery applies, then, if Customer is reasonably current on all amounts owed to Resonate under any other agreement for such Advertiser, Customer may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event will Resonate provide a makegood or extend any Ad beyond the period set forth on the Order Form without the prior written consent of Customer.
c. Unguaranteed Deliverables. If an Order Form contains CPA Deliverables, CPL Deliverables, or CPC Deliverables, the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods are not available.
VII. BONUS IMPRESSIONS
a. With Third Party Ad Server. Where Customer uses a Third Party Ad Server, Resonate will not bonus more than 10% above the Deliverables specified on the Order Form without the prior written consent of Customer. Permanent or exclusive placements will run for the specified period of time regardless of over-delivery, unless the Order Form establishes an impression cap for Third Party Ad Server activity. Customer will not be charged by Resonate for any additional Deliverables above any level guaranteed or capped on the Order Form. If a Third Party Ad Server is being used and Customer notifies Resonate that the guaranteed or capped levels stated on the Order Form have been reached, Resonate will use commercially reasonable efforts to suspend delivery and, within 48 hours of receiving such notice, Resonate may either (i) serve any additional Ads itself or (ii) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser but only (A) after such notice has been provided, and (B) to the extent such charges are associated with over-delivery by more than 10% above such guaranteed or capped levels.
b. No Third Party Ad Server. Where Customer does not use a Third Party Ad Server, Resonate may bonus as many ad units as Resonate chooses unless otherwise indicated on the Order Form. Customer will not be charged by Resonate for any additional Deliverables above any level guaranteed on the Order Form.
VIII. FORCE MAJEURE
a. Generally. Excluding payment obligations, neither Customer nor Resonate will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”). If Resonate suffers such a delay or default, Resonate will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Customer, Resonate will allow Customer a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Customer will have the benefit of the same discounts that would have been earned had there been no default or delay.
b. Related to Payment. If Customer’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Customer’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Customer will make every reasonable effort to make payments on a timely basis to Resonate, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Customer from any of its obligations as to the amount of money that would have been due and paid without such condition.
c. Cancellation. If a Force Majeure event has continued for five (5) business days, Resonate and/or Customer has the right to cancel the remainder of the Order Form without penalty, provided however, all payment due at the time of cancellation shall be promptly paid to Resonate, although in no event later than five (5) business days after such notice of cancellation.
IX. AD MATERIALS
a. Submission. Customer will submit Advertising Materials pursuant to Section II(c) in accordance with Resonate’s then-existing Policies. Resonate’s sole remedies for a breach of this provision are set forth in Section V(c), above, Sections IX (c) and (d), below, and Sections X(b) and (c), below.
b. Late Creative. If Advertising Materials are not received by the Order Form start date, Resonate will begin to charge the Advertiser on the Order Form start date on a pro rata basis based on the full Order Form, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Resonate is not required to guarantee full delivery of the Order Form. Resonate and Customer will negotiate a resolution if Resonate has received all required Advertising Materials in accordance with Section IX(a) but fails to commence a campaign on the Order Form start date.
d. Damaged Creative. If Advertising Materials provided by Customer are damaged, not to Resonate’s specifications, or otherwise unacceptable, Resonate will use commercially reasonable efforts to notify Customer within two (2) business days of its receipt of such Advertising Materials.
e. No Modification. Resonate will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Customer’s approval. Resonate will use all Ads in strict compliance with these Terms and any written instructions provided on the Order Form.
f. Ad Tags. When applicable, Third Party Ad Server tags will be implemented so that they are functional in all aspects.
g. Trademark Usage. Resonate, on the one hand, and Customer, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an Order Form without the other’s prior written approval.
Advertiser and Agency, on a joint and several basis, agrees to defend, indemnify and hold harmless Resonate, its Affiliates and its respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of (i) Customer’s breach of any of its representation, warranties or obligations under these Terms, including Section XII, (ii) violation of any Policies, including it privacy policies, or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Resonate in accordance with these Terms and Conditions or an Order Form, including but not limited allegations that such content or subject matter violate the right of a Third Party, including any intellectual property or other proprietary right, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action. An Affiliate means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party. A “Third Party” means an entity other than the parties to the Order Form, including these Terms, their respective Affiliates, and each of their respective directors, officers, employees and agents. In the case of any such indemnification as contemplated above, Resonate shall have the ability to participate in the defense of any such action with counsel of its own choosing and at its expense. Neither Advertiser nor Agency, as the case may be, may settle any claim hereunder without the prior written consent of Resonate, which shall not be unreasonably withheld or delayed.
XI. LIMITATION OF LIABILITY
Excluding Advertiser and Agency’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Customer or Resonate, in no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information or data, and the like, incurred by another party arising out of an Order Form, even if such party has been advised of the possibility of such damages. Resonate’s liability arising out of any Order Form shall be limited to the amount of fees paid or owed by Customer hereunder during the six (6) months preceding the event giving rise to the claim.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ALL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” RESONATE, ITS SERVICE PROVIDER(S) AND ANY VENDORS SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO ADVERTISER, AGENCY OR ANY OTHER PERSON WITH RESPECT TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY CONTENT INCLUDED IN ANY ADS OR OTHER MATERIALS DISPLAYED ON ADVERTISER’S WEBSITE(S) OR THE FAILURE TO DISPLAY ANY SUCH MATERIALS ON THE NETWORK PROPERTIES. RESONATE DOES NOT REPRESENT OR WARRANT THAT ANY SERVICES, ADS OR OTHER MATERIAL WILL BE DISPLAYED ON ANY NETWORK PROPERTY WITHOUT INTERRUPTION OR ERROR, AND RESONATE WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES INCURRED BY ADVERTISER OR AGENCY RELATING TO THE UNAVAILABILITY OF THE INTERNET OR WEBSITE(S) ON WHICH ADVERTISER’S ADVERTISEMENTS ARE PUBLISHED. RESONATE MAKES NO REPRESENTATIONS OR WARRANTIES RELATING TO THE RESULTS OF SERVICES, INCLUDING WITHOUT LIMITATION, THE NUMBER OF IMPRESSIONS, CLICK-THROUGHS, OR LEADS AND ANY PROMOTIONAL EFFECT OR RETURN ON INVESTMENT EXCEPT TO THE EXTENT MUTUALLY AGREED ON THE ORDER FORM.
XII. NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
a. Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to Order Form Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the Order Form.
b. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient without restriction; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that Recipient provide reasonable prior notice to the Discloser and both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure as determined by Discloser.
c. Additional Definitions. As used herein the following terms shall have the following definitions:
i. “User Volunteered Data” is personally identifiable information collected from individual users by Resonate during delivery of an Ad pursuant to the Order Form, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
ii. “Order Form Details” are details set forth on the Order Form but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
iii. “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the Order Form (e.g., number of impressions, interactions, and header information), but excluding Resonate Data or Order Form Details.
iv. “Resonate Data” is any data that is (A) preexisting Resonate data ; (B) gathered by Resonate independently from Customer; and (C) any other data collected by Resonate, including Performance Data, that is not User Volunteered Data..
v. “Collected Data” consists of Order Form Details, Performance Data, and Resonate Data.
vi. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the Order Form.
vii. “Aggregated” means a form in which data gathered under an Order Form is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
d. Use of Collected Data.
i. Unless otherwise authorized by Resonate, Customer will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any Order Form Details or Resonate Data; (B) disclose Order Form Details of Resonate Data to any Affiliate or Third Party except as set forth in Section XII(d)(iii).
ii. Unless otherwise authorized by Customer, Resonate will not: (A) use or disclose Order Form Details of Customer, Performance Data that is not otherwise Resonate Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the Order Form, compensating data providers in a way that precludes identification of the Customer, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the Order Form.
iii. Customer, and Resonate (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the Order Form on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the Order Form.
e. User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s an Agency’s posted privacy policies, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the Order Form and signed by both parties.
g. Compliance with Law. Customer and Resonate will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the Order Form.
h. Customer Use of Data. Customer will not: (i) use Collected Data unless Customer is permitted to use such Collected Data hereunder, nor (ii) use Collected Data in ways that Customer is not allowed to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Customer in Section XII(d)(i) shall not prohibit Customer from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Third-Party media companies on behalf of such clients or potential clients, for the purpose of media planning.
XIII. THIRD PARTY AD SERVING AND TRACKING (Applicable if Third Party Ad Server is used)
a. Ad Serving and Tracking. Unless otherwise agreed to in the Order Form, Resonate will track delivery through its, or its subcontractor’s, ad server (“Resonate Ad Server”). Resonate agrees to give reciprocal access to relevant and non-proprietary statistics from the ad server, or if such is not available, provide weekly placement-level activity reports.
b. Controlling Measurement. If agreed to in the Order Form that both parties are tracking delivery, the measurement used for invoicing advertising fees under an Order Form (“Controlling Measurement”) will be determined as follows:
i. Except as specified in Section XIII(b)(ii), the Controlling Measurement will be taken from an ad server that is certified as compliant with the IAB/AAAA Ad Measurement Guidelines (the “IAB/AAAA Guidelines”).
ii. If both or neither party’s ad server is compliant with the IAB/AAAA Guidelines or the requirements in subparagraph (i), above, cannot be met, the Controlling Measurement will be based on Resonate’s Ad Server, unless otherwise agreed by Customer and Resonate in writing. If such Third Party ad server is being used it must provide an automated, daily reporting interface which allows for automated delivery of relevant and non-proprietary statistics to Resonate in an electronic form that is approved by Resonate; provided, however, that Resonate must receive access to such interface in the timeframe set forth in Section XIII(c), below.
c. Ad Server Reporting Access. As available, the party responsible for the Controlling Measurement will provide the other party with online or automated access to relevant and non-proprietary statistics from the ad server within one (1) day after campaign launch. The other party will notify the party with Controlling Measurement if such party has not received such access. If such online or automated reporting is not available, the party responsible for the Controlling Measurement will provide placement-level activity reports to the other party in a timely manner, as mutually agreed to by the parties or as specified in Section IV(b), above, in the case of Ads being served by Resonate. If both parties have tracked the campaign from the beginning and the party responsible for the Controlling Measurement fails to provide such access or reports as described herein, then the other party may use or provide its ad server statistics as the basis of calculating campaign delivery for invoicing. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future Order Forms for one or more Advertisers, in which case new access for each Order Form is not necessary.
d. Discrepant Measurement. If the difference between the Controlling Measurement and the other measurement exceeds 10% over the invoice period and the Controlling Measurement is lower, the parties will facilitate a reconciliation effort between Resonate and Third Party Ad Server measurements. If the discrepancy cannot be resolved and a good faith effort to facilitate the reconciliation has been made, Customer reserves the right to either:
i. Consider the discrepancy an under-delivery of the Deliverables as described in Section VI(b), whereupon the parties will act in accordance with that Section, including the requirement that Customer and Resonate make an effort to agree upon the conditions of a makegood flight and delivery of any makegood will be measured by the Third Party Ad Server, or
ii. Pay invoice based on Controlling Measurement-reported data, plus a 10% upward adjustment to delivery.
e. Measurement Methodology. Resonate will make reasonable efforts to publish, and Customer will make reasonable efforts to cause the Third Party Ad Server to publish, a disclosure in the form specified by the AAAA and IAB regarding their respective ad delivery measurement methodologies with regard to compliance with the IAB/AAAA Guidelines.
f. Third Party Ad Server Malfunction. Where Customer is using a Third Party Ad Server as agreed in the IP and that Third Party Ad Server cannot serve the Ad, Customer will have a one-time right to temporarily suspend delivery under the Order Form for a period of up to 72 hours. Upon written notification by Customer of a non-functioning Third Party Ad Server, Resonate will have 24 hours to suspend delivery. Following that period, Customer will not be held liable for payment for any Ad that runs within the immediately following 72-hour period until Resonate is notified that the Third Party Ad Server is able to serve Ads. After the 72-hour period passes and Customer has not provided written notification that Resonate can resume delivery under the Order Form, Advertiser will pay for the Ads that would have run, or are run, after the 72-hour period but for the suspension, and can elect Resonate to serve Ads until the Third Party Ad Server is able to serve Ads. If Customer does not so elect for Resonate to serve the Ads until Third Party Ad Server is able to serve Ads, Resonate may use the inventory that would have been otherwise used for Resonate’s own advertisements or advertisements provided by a Third Party.
g. Third Party Ad Server Fixed. Upon notification that the Third Party Ad Server is functioning, Resonate will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in Resonate owing a makegood to Customer.
a. Necessary Rights. Resonate represents and warrants that Resonate has all necessary permits, licenses, and clearances to sell the Deliverables specified on the Order Form subject to these Terms. Advertiser and Agency each represent and warrant that (i) each Advertiser and Agency have all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the Order Form and subject to these Terms, including any applicable Policies; (ii) the content contained in the Ads is true and accurate, does not violate any law or regulation and is not misleading, defamatory, libelous or slanderous, (iii) Resonate’s use of the content used in the Ads will not infringe upon or violate the rights or property interests of any third party, including without limitation, any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any other party, or any right of privacy or publicity, and (iv) Advertiser and Agency will each maintain a privacy statement on its principal website (“Privacy Statement”) that complies with applicable law and accurately and transparently discloses its privacy practices to users of such website, including any privacy practices implicated by the undertakings contemplated by these Terms. Advertiser and Agency will each notify Resonate in writing promptly if any of the foregoing representations and warranties becomes untrue.
b. Assignment. Customer may not resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Resonate’s prior written approval will be null and void. All terms and conditions in these Terms and each Order Form will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns. Resonate may assign this Agreement or the Order Form without restriction.
c. Entire Agreement. Each Order Form (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the Order Form. The Order Form may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
d. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an Order Form and these Terms, the terms of the Order Form will prevail with respect to the conflicting term only. All Order Forms will be governed by the laws of the Commonwealth of Virginia. Resonate, Advertiser and Agency each agree that any claims, legal proceedings, or litigation arising in connection with the Order Form (including these Terms) will be brought solely in the state or federal courts in Alexandria, Virginia, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
e. Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Resonate and Customer will be sent to the respective contacts as noted on the Order Form with a copy to each party’s respective Legal Department.
f. Survival. Sections III, VI, X, XI, XII, and XIV will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
g. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.