Last Updated: January 4, 2020
The following terms and conditions (“Terms and Conditions”) are between Socialcom, Inc., d/b/a AUDIENCEX (“aX”) and the advertiser, or agency acting as agent for an advertiser (collectively, the “Client”), which is specified in the applicable insertion order (“IO”). Client desires for aX to provide the advertising and media services (“Services”). The IO and these Terms and Conditions (the “Agreement”) hereby authorize aX to purchase the media specified in the IO for Client’s campaign (the “Campaign”). These Terms and Conditions hereby incorporate by reference the IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0 (“IAB Terms”), except as amended by these Terms and Conditions. If there are any conflicting terms between the IO, these Terms and Conditions, and the IAB Terms, the order of superseding documents shall be as follows: The IO, these Terms and Conditions, and lastly, the IAB Terms.
aX may revise and update these Terms and Conditions from time to time in aX’s sole discretion. All changes are effective immediately when aX posts them. However, any changes to the dispute resolution provisions set out in Section 12 (Arbitration) and Section 13 (Governing Law) herein will not apply to any disputes for which the parties have actual notice on or before the date the change is posted on our website. Your continued use of the Services following the posting of revised Terms and Conditions means that you accept and agree to the changes. Please regularly check this page from time to time so you are aware of any changes, as such changes are binding.
1. Ad Serving
Client’s signature below will be aX’s authorization to purchase the media specified in the IO for the Campaign. All media purchases are billed consistent with actual delivery, as calculated and solely determined by aX.
Client’s advertising (the “Ads”) will be served, monitored, and delivery verified, by the aX ad delivery platform and system, which is managed by aX, and shall be considered the accurate number of impressions served, by both aX and Client. The number of Ads served in the Campaign, as specified in the IO, is based and calculated solely on aX’s reporting metrics. aX will not provide reporting of net media or other Services, it being understood that no volume guarantee is provided in programmatic buying and thus pricing is dynamic. If a Campaign is underspending based on the available inventory, aX reserves the right to redistribute media spend to similar channels with additional inventory in aX’s sole discretion. The remedy for any failure to deliver advertising impressions is a make-good that is mutually agreed upon between aX and Client.
Ads will only be targeted to the United States and Canada inventory and traffic, unless specified in the IO above and will not be targeted to the EU. “aX will use commercially reasonable efforts to ensure Ads are only targeted to the United States and Canada inventory and traffic, unless otherwise expressly stated in the IO above. aX is not responsible for any Ads which may run in jurisdictions inconsistent with such targeting in the IO. aX’s buying platform will comply with category restrictions specified in the IO, provided that aX is not responsible for the classification or misclassification of websites by third parties or for any Ads that are actually served to incorrect geolocations.
Client grants aX a revocable, non-exclusive, non-transferable worldwide license to use, reproduce and transmit, during the term of the IO, its names, logos, trademarks, service marks, trade dress, copyrights, and proprietary technology, whether currently used or which may be developed or used by it in the future (“Marks”) solely for the purpose of displaying the Content. Client owns and shall retain all right, title, and interest in its Marks. All rights not expressly granted by aX herein are reserved.
Payment terms are net 30 days unless other payment arrangements are mutually agreed upon in writing (email sufficing). Payment may be made by check, ACH wire transfer, or credit card. aX reserves the right to charge a 3% processing fee for all credit card payments. The campaign will begin on the day and time specified in the IO. Any issues arising from invoices received must be communicated to aX within 10 business days from Client’s receipt of the invoice.
For any invoice that is not paid in full within thirty (30) days of the invoice date, aX reserves the right to (a) charge interest of 2% per month (or the maximum allowed by law, whichever is lower), and/or (b) suspend the Services or terminate this Agreement, in aX’s sole discretion, if Company does not pay an overdue invoice in full within five (5) days of receiving a default notice (email sufficing).
4. Data and Privacy
Client is responsible for positing and complying with privacy policies on its own and affiliated websites (the “Sites”). Client represents, warrants, and covenants that all data collection through tags and data usage complies with (i) all laws, rules, and regulations, including, without limitation, laws governing the storing, processing, and transferring of personal information such as the EU General Data Protection Regulation (“GDPR”) and California Consumer Protection Act (“CCPA”), (collectively, “Applicable Laws”); (ii) the self-regulatory principles, guidelines, rules and codes of conduct of the Digital Advertising Alliance, the Interactive Advertising Bureau, the Direct Marketing Association and any other self-regulatory organizations to which third parties providing services, platforms, and data are bound and any required notices and consents; and (iii) privacy disclosures and information collection requirements imposed on advertisers by targeting of media by aX, Client, and third parties in order to comply with Applicable Laws. Accordingly, Client represents, warrants and covenants that it will display and comply with a privacy notice on the Sites that complies with Applicable Laws. Where required by Applicable Laws (including, without limitation, the Children’s Online Privacy Protection, GDPR, and CCPA), Client will deploy appropriate notices and functionality to obtain authorizations and consents as required.
Following Client’s receipt of an email from aX’s data protection officer, should Client receive an access or deletion request regarding an individual Visitor’s Personal Data, as processed by Client, Client shall comply with any CCPA requests received from aX’s data protection officer, and allow the user to delete or access personal data, thereby assisting aX in complying with aX’s obligations under Applicable Laws. Client shall cooperate with aX if an individual requests (i) access to his or her personal data, (ii) information about the categories of sources from which the personal data is collected, or (iii) information about the categories or specific pieces of the personal data. Client shall immediately inform aX in writing (email sufficing) of any requests with respect to personal data.
Client represents, warrants and covenants that any data, materials, information or technology that Client provides to aX (e.g., Client’s first-party data or other data separately acquired by Client, but not data collected by aX or aX’s third party suppliers) does not and will not contain any information that is considered personally identifiable information or its functional equivalent under applicable privacy policies and Applicable Laws unless Client has obtained express consent. In addition, Client agrees that any data, materials, information or technology that Client does provide to aX has been collected and/or created, and shall be provided to aX in compliance with applicable privacy policies and Applicable Laws, including that all required privacy disclosures have been and will be made and all required appropriate consents have been and will be obtained.
Only Client’s first-party data will be used in the Campaign. aX’s technology service providers may collect “Campaign Data” via website installed pixels to record activities related to Ads, including technical information such as IP addresses, browser type, etc., which is used solely for the business purpose of this Agreement. aX’s contracts with service provider platforms, which allows use of Campaign Data on an aggregated basis that does not identify Client or any end-user as a source of such data.
Client will provide aX with the content of all Ads, including, without limitation, logos, graphic files, links, or other advertising material (“Content”) to be displayed, distributed, or used. Client represents and warrants that its website(s) and the Content will not contain any lewd, obscene, pornographic, hateful, violent, defamatory, or libelous content, will not violate any Applicable Laws regarding unfair competition, anti-discrimination, or false advertising, and will not contain viruses, Trojan horses, worms, time bombs, or other similar harmful programming routines. aX follows all widely accepted internet advertising guidelines and industry-standard practices. Client may modify the Content by providing aX new Content, and aX will use commercially reasonable efforts to implement all such requested changes within forty-eight (48) business hours of receipt. aX shall not, without Client’s prior written instruction or consent (email sufficing), (i) alter or modify the Content (ii) create, publish, distribute or permit any written material (other than the Content) that makes reference to Client, or (iii) make any representations, warranties or other statements concerning Client, Client’s products, services, website, website policies, or the Content. Each party will notify the other immediately upon discovery of any malfunctioning of the Content or links to Client’s website(s). If aX creates Content for Client, Client will review and approve such materials before use and will be fully responsible for such materials, which will be considered Content hereunder.
6. Client’s Representations and Warranties
In addition to the representations and warranties in the IAB Terms, Client represents and warrants that: (i) the display of all submitted Content, programming Content and/or other video, audio, visual and interactive data to the prescribed audience does not violate nor encourage violation of criminal laws, civil laws, or community standards (including that the Content is not fraudulent, deceptive or unlawful) and complies with all Applicable Laws; (ii) ad tags provided will not load malware, viruses or other harmful content, and that any tracking within the tag will comply with NAI standards; (iii) any and all Content provided by Client, or on behalf of Client, under this Agreement meets the specifications and other technical and delivery requirements established by the platforms offered by aX under this Agreement and applicable to such; (iv) all processes, methodologies, models and data provided, developed, optimized or improved by aX are and remain aX’s sole property; and (v) it will promptly remove all tags at the termination of this Agreement. Any advertising agency acting as an agent for an advertiser (“Advertiser”) and signing as Client, warrants and represents to aX that it has authority as Advertiser’s agent to bind Advertiser to this IO and Agency will indemnify, defend and hold harmless aX and its officers, directors, agents, affiliates, licensors, and employees from any and all losses it suffers related to breach of the foregoing warrantee and representation and will immediately, upon request, provide aX with Advertiser’s contact information.
The content of an IO and any delivered reporting shall be deemed Confidential Information and will not be disclosed by either party.
Client’s right to cancel the IO within the initial 30 days will be consistent with the IAB Terms. After the initial 30 days of the Campaign, Client may terminate the IO or pause the Campaign on not less than 48 business hours prior written notice (email sufficing). If Client fails to timely pay any aX invoice, and Client has not provided payment with five (5) days of aX’s notice to Client regarding untimely payment, aX may, in addition to all other rights and remedies available to aX, immediately terminate this Agreement and/or any IO. Additionally, aX may terminate this Agreement or any IO, with or without cause, upon (i) twenty-four (24) hours’ prior written notice (email sufficing) to Client, or (ii) immediately with notice to Client (email sufficing) at the conclusion of a Campaign, whichever is shorter.
Client is solely liable for all Content and Client’s website(s) and, in addition to Client’s indemnification obligations in the IAB Terms, Client hereby agrees to indemnify, defend and hold harmless aX, its officers, directors, agents, affiliates, licensors, and employees from and against any and all claims, actions, liabilities, losses, expenses, damages, and costs, (including without limitation all attorneys’ fees and costs of every kind, including expert fees and not limited to statutory costs), arising out of or relating to third party claims in any way related to (1) Client’s breach of this Agreement, including, but not limited to, any representation, warranty, or covenant contained herein; (2) the Content; (3) Client’s website(s); (4) any errors, omissions, and/or unauthorized media spend on Client’s social media business advertising accounts, including but not limited to, Client’s Facebook, Google, and Microsoft business account(s) (“Business Accounts”), that was not directly and wholly caused by aX or an employee of aX; (5) any errors, omissions, and/or unauthorized media spend on Client’s Business Accounts that occurs after the termination or expiration of this Agreement, including but not limited to, errors, omissions, or unauthorized media spend which results from Client’s failure to restore or modify any Business Account settings that were previously configured by aX, or an employee of aX prior to termination or expiration of the Agreement; (6) aX’s use of the Content in the Ads; and (7) Client’s non-compliance with any Applicable Law.
CLIENT EXPRESSLY AGREES THAT THE USE OF THE SERVICES IS AT THE CLIENT’S OWN RISK. THE SERVICES ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. NEITHER AX NOR ANY OF ITS LICENSORS, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, MAKES ANY WARRANTY OR REPRESENTATION WHATSOEVER REGARDING THE SERVICES PROVIDED TO CLIENT UNDER THIS AGREEMENT, ANY INFORMATION, SERVICES, OR PRODUCTS PROVIDED OR AVAILABLE THROUGH OR IN CONNECTION WITH THE SERVICES (INCLUDING, BUT NOT LIMITED TO, THE SERVICES PROVIDED, OR ANY RESULTS OBTAINED THROUGH THE USE THEREOF. AX HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ALL INFORMATION PROVIDERS, LICENSORS, AND/OR LICENSEES ANY AND ALL WARRANTIES INCLUDING, WITHOUT LIMITATION: ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF THE SERVICES; AND ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability
SUBJECT TO THE LIMITATIONS OF LIABILITY, THE TOTAL AGGREGATE LIABILITY OF aX, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, PATENT LIABILITY, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL BE STRICTLY LIMITED TO TEN THOUSAND DOLLARS ($10,000). IN NO EVENT WILL aX, ITS INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
IN NO EVENT SHALL AX NOR ANY OF AX’S INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS BE LIABLE, RESPONSIBLE, OR ACCOUNTABLE, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, PATENT LIABILITY, OR UNDER ANY OTHER CAUSE OF ACTION, FOR (i) ANY MEDIA SPEND, CHANGES TO ACCOUNT SETTINGS, ERRORS, OMISSIONS, AND/OR ANY OTHER ACTIVITY THAT OCCURS ON OR THROUGH CLIENT’S BUSINESS ACCOUNTS THAT WAS NOT DIRECTLY AND WHOLLY CAUSED BY AX OR AX’S EMPLOYEES, OR (ii) ANY ERRORS, OMISSIONS, AND/OR UNAUTHORIZED MEDIA SPEND ON CLIENT’S BUSINESS ACCOUNTS THAT OCCUR AFTER TERMINATION OR EXPIRATION OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, ERRORS, OMISSIONS, OR UNAUTHORIZED MEDIA SPEND RESULTING FROM CLIENT’S FAILURE TO RESTORE OR MODIFY ANY BUSINESS ACCOUNT SETTINGS THAT WERE PREVIOUSLY CONFIGURED BY AX, OR AN EMPLOYEE OF AX, PRIOR TO EXPIRATION OR TERMINATION OF THIS AGREEMENT.
EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN AND THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules, which are available at the following website: https://www.jamsadr.com/rules-comprehensive-arbitration/. Once selected, the arbitrator shall be empowered to hear and resolve any and all issues related to, arising from, based upon or in any way related to the dispute, whether based in law or equity. The arbitrator shall issue rulings, decisions, orders, judgments and permanent injunctions as applicable and appropriate. Each party shall bear its own costs for the cost of arbitration.
Client hereby agrees that any claims or causes of action it brings arising out of or related to this Agreement will be brought in its individual capacity and Client will not be a party, class member, or representative of any class action proceedings against aX, or any of its affiliates. The arbitrator may not preside over any form of a representative or class proceeding. The arbitrator may not consolidate more than one person or business entity’s claims.
13. Choice of Law
This Agreement will be governed by and construed in accordance with the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of the parties. The parties consent to arbitration exclusively in Los Angeles, California for all actions arising out of or related to this Agreement in accordance with Section 12 above. THE PARTIES HEREBY AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL.