Terms and Conditions for ATBs Entered Into Before June 16, 2023
DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
“Accounts” means our accounts with third parties, including, without limitation, demand-side platforms, Facebook, Google Ads, Google Analytics, Twitter, and LinkedIn, that we use in connection with the Campaign, and any and all materials (including search terms) and data contained in such accounts.
“Ad” or “Advertisement” means any advertisement provided by Customer on behalf of an Advertiser (when Customer is executing the Campaign on behalf of Advertiser) or on Customer’s own behalf in marketing Customer’s goods and/or services.
“Advertiser” means an entity that wishes to advertise its goods and/or services via the Advertisements.
“Advertising Content” means Ads and artwork, copy, or active URLs for Ads and all related content, including banners, text, links, keywords, trademarks, logos, and HTML for the Campaign provided by Customer to Pathlabs in connection with the Campaign.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Agreement” means these Terms and Conditions of Services and the ATB into which they are incorporated.
“Applicable Laws” means all applicable international, national, state, and local laws, statutes, ordinances, regulations, directives, and self-regulatory guidelines, including those relating to privacy.
“Authorization to Buy” or “ATB” means Customer’s authorization to Pathlabs to plan, manage, and report on the Campaign on behalf of Advertiser, which shall contain all required Campaign instructions, including, without limitation, the Campaign name, the Ads to be run, beginning and ending dates, pricing information, the type(s) of Deliverables, key performance indicators, placement information, targeting information, and any other terms necessary for Pathlabs to perform its obligations (collectively, the “ATB Details”).
“Campaign” means the Ad campaign described in the ATB.
“Collection Technologies” means cookies, Flash, web beacons, pixels, tags, HTML, and other software code used to collect data.
“Confidential Information” means: (i) with respect to Pathlabs, our software, and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to you, any non-public information or material regarding your legal or business affairs, financing, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
“Custom Material” means material developed or purchased by Pathlabs specifically for the execution of the ATB, including, without limitation, attribution solutions, pre-purchased impressions, verification contracts, data, creative, landing pages, or studies.
“Deliverable” means the impressions, clicks, actions, or events delivered or facilitated by Pathlabs pursuant to the ATB.
“Editorial Adjacency Guidelines” means the guidelines you provide to us regarding the types of content your Ads are prohibited from appearing near.
“Fees” means all fees payable to Pathlabs under this Agreement.
“Personal Data” means the definition of “personal data,” “personal information,” or “personally-identifiable information” (or similar term) set forth under Applicable Law.
“Process,” “Processing,” or “Processed” means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, using, accessing, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, modification, blocking, erasure, or destruction.
“Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms, such as viruses; or (viii) is otherwise objectionable to us in our sole, but reasonable, discretion.
“Restricted Content” means any content that is subject to heightened content restrictions under Applicable Law, including, without limitation, gambling, CBD, hemp, pregnancy termination, healthcare, political advertising, pharmaceuticals, drugs, alcohol, pornography, and financial services.
“Services” means Pathlabs’ provision of Campaign management and optimization services, Ad operations and trafficking services, and/or performance analysis services on behalf of Customer as set forth in the ATB, including, without limitation, the Media Activation.
“Sites” means digital properties specified in the ATB that are not owned, operated, or controlled by Pathlabs, but on which Pathlabs has a contractual right to serve Ads.
“Strategies” means bid, targeting, and other strategies created and/or used by Pathlabs in connection with the Campaign.
“Third-Party Data” means data that is collected by a third party that does not have a direct relationship with consumers.
AUTHORIZATION TO BUY; EXCLUSIVITY; OWNERSHIP.
Authorization to Buy. All Services to be performed by Pathlabs under this Agreement will be covered by the ATB agreed on by the Parties and are subject to the operational Campaign requirements set forth in therein and in Schedule A, which is attached hereto and incorporated herein. The ATB will be in writing and signed by an authorized representative of each Party. In the event of a conflict between this Agreement and the ATB, the terms of this Agreement shall control unless the ATB references the specific section of this Agreement that is to be superseded.
Exclusivity. This Agreement is non-exclusive, and Pathlabs shall at all times retain the right, in its sole discretion, to perform the same or similar type of services for third parties.
Ownership. Pathlabs shall own and retain all right, title, and interest in and to any Accounts and Strategies. Customer shall own all right, title, and interest in and to any Advertising Content.
ADVERTISING CONTENT; BRAND SAFETY.
Advertising Content. Subject to the terms and conditions of this Agreement, you hereby grant us during the Campaign a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Advertising Content solely for us to perform our obligations hereunder. You will have sole responsibility for the accuracy, quality, and legality of the Advertising Content.
Brand Safety. In connection with the Services, we will input the Editorial Adjacency Guidelines into the applicable third-party platforms’ brand safety settings and, if the Authorization to Buy stipulates that we are to engage a third-party verification service provider in connection with the Campaign, we will input the Editorial Adjacency Guidelines into such provider’s brand safety settings. If any Ad is served in violation of the Editorial Adjacency Guidelines, Customer’s and Advertiser’s (if Customer is acting on behalf of Advertiser) sole and exclusive remedy against us, and our sole and exclusive obligation, is for Customer to request in writing that we request that the applicable third-party platform: (i) cease serving the Ads in violation of the Editorial Adjacency Guidelines; and (ii) provide makegoods or, if no makegood can be agreed upon with Customer, issue a credit to Customer equal to the value of such Ads, or not bill Customer for such Ads.
DATA.
Usage of Collection Technologies. Customer hereby authorizes Pathlabs to insert into the Ads or other digital properties (including, without limitation, Advertiser digital properties) those Collection Technologies disclosed to, and approved by, Customer solely for tracking, reporting, managing, trafficking, and Ad optimization purposes in the performance of our obligations hereunder. Customer is solely responsible for managing, approving, and, upon the termination of this Agreement, removing all Collection Technologies placed by Pathlabs on Advertiser’s digital properties.
Data. The Parties will comply with Sections XII(c)-(e) of the IAB/4As Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less v.3.0 (the “IAB Terms”), which are hereby incorporated by reference; provided that: (i) Customer shall be treated as “Advertiser;” (ii) Pathlabs shall be treated as “Media Company;” (iii) “IO” shall be replaced with “ATB;” and (iv) Pathlabs may use and disclose ATB Details and Performance Data (as defined in the IAB Terms) on an Aggregated (as defined in the IAB Terms) basis. If Third-Party Data is provided to Customer by Pathlabs, Customer shall have no right, title, or interest in or to any such Third-Party Data except as provided in this Agreement and may use such data only during the term of the Campaign in connection with the relevant transaction with Pathlabs.
GDPR. To the extent that use of the Services or Collection Technologies by either Party relates to the offering of goods and services to (including, without limitation, the Campaign taking place in the EEA), or monitoring the behavior of individuals located in the EEA, the Parties will enter into the Data Protection Addendum provided to Customer by Pathlabs, which shall be attached hereto and incorporated into this Agreement.
CONFIDENTIALITY; FEEDBACK.
Confidentiality. The Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party; provided, however, that we may disclose your Confidential Information to third parties as necessary to perform the Services. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party, unless legally prohibited from doing so, will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use commercially reasonable efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 5.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in, any act which violates Section 5.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of Section 5.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
Feedback. During the Term, you may elect to provide us with feedback, comments, and suggestions with respect to the Services (“Feedback”). You agree that Pathlabs will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you.
TERM, TERMINATION, AND CANCELATION.
Term. This Agreement commences on the Effective Date and, unless otherwise terminated in accordance with this Agreement, shall continue until the completion of the Campaign.
Cancellation/Suspension of the Campaign or ATB by Pathlabs. Pathlabs shall retain sole discretion to suspend or cancel the Campaign or ATB for any reason; provided, however, that Pathlabs shall provide sixty (60) days’ prior written notice to Customer unless Pathlabs has elected to cancel or suspend the Campaign due to an alleged violation of Applicable Law by Customer in the course of conducting the Campaign. Pathlabs may refuse any Advertising Content or the Campaign for any reason in its sole discretion.
Cancelation of ATB by Customer. Unless designated on the ATB as non-cancelable, Customer may cancel the entire ATB, or any portion thereof, with fourteen (14) days’ prior written notice to Pathlabs.
Effect of Cancelation by Customer. Upon any cancelation of the ATB by Customer, Customer shall pay all sums due to Pathlabs for any Custom Materials created or obtained by Pathlabs prior to the effective date of termination.
Survival. The following sections shall survive any termination of this Agreement: 1, 2.3, 4.2, 5, 6.4, 6.5, 7 (until all Fees and Taxes are paid), 8.4, 9, 10, and 11.
BILLING AND PAYMENT.
Credit Approval. Prior to initiating the Campaign with Pathlabs, Customer shall be subject to a credit check. Upon successful completion of the credit check, Pathlabs will inform Customer of its credit limit. If Customer fails the initial (or subsequent, pursuant to the next sentence) credit check, Pathlabs may require Customer to prepay amounts for a minimum of six (6) months. After such period, Pathlabs will reevaluate Customer’s creditworthiness until such time as Customer passes Pathlabs’ credit check, at which time Pathlabs shall inform Customer of the credit limit.
Billing Measurement. Our billing measurements will be the sole basis for determining the amounts owed by you hereunder. You will have no recourse against us for any discrepancy between our billing measurements (including impression and click count) and any alternative measurements produced by you or any third party; provided, however, if you use either Google’s or Sizmek’s ad servers for verification purposes and you notify us of such usage in writing and provide us automated reports or access to the interface, in each case, within one (1) day of execution of the ATB and there is a discrepancy between our numbers and their numbers of greater than ten percent (10%), we shall deliver the applicable Deliverables until such discrepancy falls below ten percent (10%). If your ad server malfunctions or was implemented incorrectly, upon your request, we can serve the Ads on your behalf through our own ad server. For any Deliverables sold on a cost per completed view basis, our measurement shall be as follows: (i) in reference to services rendered for pre-roll, connected TV, full episode player, in-banner video, native video, and in-stream digital video, a completed view is a video that is viewed to 100% completion unless otherwise set forth in the ATB; (ii) in reference to services rendered for Facebook and Instagram Video, a view shall be deemed a completed view using Facebook’s then-current definition; and (iii) in reference to services rendered for YouTube, a view shall be deemed a completed view using Google’s then-current definition.
Fees and Taxes. Fees and other charges described in the ATB are in addition to and do not include any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which will be for your account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to us prior to the Effective Date. If we are required to collect and remit Taxes on your behalf, we will invoice you for such Taxes, and you will pay us for such Taxes in accordance with Section 7.4. You hereby agree to defend, indemnify, and hold harmless us and our officers, directors, managers, employees, contractors, and agents from any and all liabilities, costs, damages, losses, and expenses, including reasonable attorneys’ fees (collectively, “Losses”) in connection with any Taxes and related costs, interest, and penalties paid or payable by us on your behalf. For the avoidance of doubt, we will only be responsible for any taxes related to our income, property, franchise, or employees.
Invoicing and Payment. Unless otherwise set forth in the ATB: (i) we shall invoice you on a monthly basis; (ii) all undisputed amounts are due and payable to us net thirty (30) days from receipt of invoice; and (iii) all payments must be in U.S. Dollars. You shall have five (5) days after receipt of the invoice to dispute the Fees and Taxes with factual and documentary evidence. Failure to dispute within such time renders the invoice due and payable in full. You shall not thereafter dispute the invoice. You acknowledge that Pathlabs relies upon this provision in making payments to third parties in its system.
Late Payments. In the event that any undisputed invoiced amount is not received by us by the due date as set forth in Section 7.4, then without limiting our rights and remedies, we may: (i) charge interest on the outstanding balance (at a rate not to exceed the lessor of one percent (1%) per month or the maximum rate permitted by Applicable Law); (ii) condition future ATBs on payment terms shorter than those specified in Section 7.4; and/or (iii) cancel or suspend the Campaign/ATB or terminate this Agreement in accordance with, and pursuant to, Section 6.
REPRESENTATIONS, WARRANTIES, AND COVENANTS; DISCLAIMER.
Mutual Representations and Warranties. Each Party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement, are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; (iii) its performance hereunder will fully comply with all Applicable Laws; and (iv) it has obtained and shall maintain throughout the Term of this Agreement all necessary licenses, authorizations, approvals, and consents to enter into and perform its obligations hereunder in compliance with all Applicable Laws.
Our Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 8.1, we represent and warrant that any Services we provide will be performed in a timely, professional, and workmanlike manner.
Your Additional Representations, Warranties, and Covenants. In addition to the representations and warranties set forth in Section 8.1, you represent, warrant, and covenant that: (i) the Advertising Content contains no Prohibited Content or Restricted Content (unless, in the case of Restricted Content, the ATB stipulates that the Advertising Content contains Restricted Content, in which case the Restricted Content Addendum, attached hereto and incorporated herein as Schedule B, shall apply); you have the right to provide us the Advertising Content in accordance with this Agreement; and any product descriptions contained in the Advertising Content shall be true and accurate; (ii) if you are an Advertiser, you shall obtain all required consents (provided you do not have another valid legal ground or basis), give all required notices or disclosures, and fulfill all other legal obligations under Applicable Law to (a) give lawful instructions to Pathlabs regarding the Processing of Personal Data and ensure the unencumbered right of Pathlabs to Process Personal Data, in each case for the purposes set forth herein; and (b) lawfully authorize Pathlabs’ insertion of Collection Technologies for the purposes set forth in Section 4.1; (iii) if you are an Agency, you shall perform the covenants set forth in Section 8.3(ii) or contractually require and ensure that the Advertiser performs such covenants to enable Agency to carry out Section 8.3 (ii)(a) and Section 8.3 (ii)(b) on Advertiser’s behalf; (iv) your activities (and the activities you direct Pathlabs to conduct under the ATB) on social media platforms in connection with this Agreement or the ATB shall fully comply with all applicable guidelines, policies, and special provisions posted on such social media sites; (v) your website home page has a prominent link to a privacy policy, and you have been, are, and shall remain in compliance with such policy and all Applicable Laws relating to privacy; (vi) you shall use any Personal Data collected in connection with the Campaign for legal purposes only; (vii) no Campaign is targeted to children under the age of thirteen (13); and (viii) no computer programs shall be loaded onto a consumer computer without express consent (specifically excluding cookies, JavaScript code, and other similar web technologies if the use of such web technologies is disclosed in your privacy policy).
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 AND SECTION 8.2, THE SERVICES, THE COLLECTION TECHNOLOGIES, AND ANY OTHER MATERIALS AND SERVICES PROVIDED BY PATHLABS HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND PATHLABS MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT PATHLABS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
INDEMNIFICATION.
Indemnification by Pathlabs. We will defend, indemnify, and hold harmless you and your officers, directors, and employees from any and all Losses incurred by such parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from our gross negligence, willful misconduct, or breach of Section 8.1 or Section 8.2; provided, however, that the foregoing obligation will be subject to your: (i) promptly notifying us of the Claim; (ii) providing us, at our expense, with reasonable cooperation in the defense of the Claim; and (iii) providing us with sole control over the defense and negotiations for a settlement or compromise of the Claim.
Indemnification by Customer. You will defend, indemnify, and hold harmless us and our officers, directors, employees, and agents from any and all Losses incurred by such parties in connection with any Claim arising from: (i) your breach or violation of this Agreement; (ii) your Processing and transfer to Pathlabs of any Personal Data and authorization for Pathlabs’ insertion of Collection Technologies for the purposes set forth herein; or (iii) your violation of Applicable Law; provided, however, that the foregoing obligation will be subject to our: (a) promptly notifying you of the Claim; (b) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (c) providing you with sole control over the defense and negotiations for a settlement or compromise of the Claim.
LIMITATION OF LIABILITY. EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INDEMNIFICATION OBLIGATIONS OR YOUR FAILURE TO PAY ANY AMOUNTS DUE AND OWING: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO PATHLABS (EXCLUDING, FOR THE AVOIDANCE OF DOUBT, THE COSTS OF MEDIA PURCHASED BY PATHLABS ON YOUR BEHALF) BY YOU UNDER THE ATB DURING THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY A PARTY MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. YOU ACKNOWLEDGE AND AGREE THAT: (A) THE ESSENTIAL PURPOSE OF THIS SECTION 10 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY; (B) THE FEES WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN; AND (C) WE HAVE RELIED ON THESE EXCLUSIONS AND LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SOFTWARE.
GENERAL PROVISIONS.
Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
Waiver. Subject to the last sentence in Section 10, no failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Montana, without regard for choice of law provisions thereof.
Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in Missoula, Montana for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement and waive any and all objections to such courts, including, but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any such suits, actions, or proceedings.
Notices. All notices required under this Agreement (other than routine operational communications) must be in writing and will be delivered either personally or by e-mail (other than notices under Section 6, which may not be delivered by e-mail), national overnight courier or the U.S. Postal Service to each Party’s notices contact and address listed in the ATB. Notices will be effective upon: (i) actual delivery to the other Party, if delivered in person or by e-mail (other than notices under Section 6, which may not be made via e-mail), or national overnight courier; or (ii) five (5) business days after being mailed via the U.S. Postal Service, postage prepaid.
Independent Contractors. As between themselves, the Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.
Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement that is unenforceable in any jurisdiction will be ineffective only as to that jurisdiction and only to the extent of such unenforceability without invalidating the remaining provisions hereof.
Force Majeure. Except for your obligations to pay any Fees and Taxes hereunder, neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, mass diseases, epidemics or pandemics (e.g. COVID-19), public health requirements, government-imposed quarantines or other governmental interventions, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.
Third-Party Beneficiaries. Except as set forth in Section 9, there are no third-party beneficiaries under this Agreement.
Publicity. During the Term, we may refer to you as a customer of the Services. In connection therewith, we may use your name and, with your prior written consent, your corporate logos. Any goodwill arising from the use of such name and logos will inure solely to your benefit. All other publicity regarding this Agreement will be mutually coordinated and approved by the Parties.
Complete Understanding. This Agreement, including the attached Schedules, constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. No term included in any confirmation, acceptance, purchase order, insertion order, or any other similar document from you will change this Agreement or have any force or effect.
Counterparts. This Agreement may be executed in counterparts (which may be exchanged by fax or PDF), each of which will be deemed an original, but all of which together will constitute the same Agreement.
SCHEDULE A - OPERATIONAL CAMPAIGN REQUIREMENTS
1. Late Creative. Customer will submit Advertising Content to Pathlabs in accordance with Pathlabs’ then-existing policies, which we will provide to you in writing. If Advertising Content is not received by the Campaign start date, Pathlabs will begin to charge Customer on the Campaign start date on a pro rata basis based on the full ATB, excluding portions consisting of performance-based, non-guaranteed inventory, for each calendar day the Advertising Content is not received. If Advertising Content is late, Pathlabs shall not be required to guarantee full delivery of the ATB. Pathlabs and Customer will negotiate a commercially reasonable resolution if Pathlabs has received all required Advertising Content in accordance with the provisions of this Agreement, but fails to commence the Campaign on the ATB start date.
2. Damaged Creative. If Advertising Content provided by Customer is damaged, not in conformance to Pathlabs’ specifications, or otherwise unacceptable, Pathlabs will use commercially reasonable efforts to notify Customer within five (5) business days of our receipt of such Advertising Content. Pathlabs takes no responsibility for functionality issues regarding the Advertising Content, including, without limitation, animations, motions, click trackers, click macros, click tags, or closed captioning.
3. Functionality. Customer shall confirm the functionality of Advertising Content twenty-four (24) hours prior to the Campaign start date. Pathlabs is not responsible for ensuring that Customer provides such confirmation. Pathlabs is not responsible or liable for any errors in Advertising Content.
4. Accounts and Reporting. Pathlabs will provide Customer commercially reasonable reporting on the performance of the Campaign. Unless otherwise set forth in the ATB, we will run the Campaign in our Accounts.
5. Service Level Agreement. Pathlabs will operate under the following Service Level Agreement:
Initial Campaign Launch: Three (3) business days after all Advertising Content, the executed Agreement, and the mutually-agreed upon media plan has been received by Pathlabs from Customer.
Email Communications: Emails will be returned to no later than one (1) business day after receipt of email.
Creative Swaps: Three (3) business days after all Advertising Content has been received by Pathlabs from Customer.
Reporting: Three (3) business days after request has been made to Pathlabs or on an agreed-upon date between Pathlabs and Customer.
SCHEDULE B - RESTRICTED CONTENT ADDENDUM
1. Prior to running the Campaign for Restricted Content, Customer shall notify Pathlabs and receive prior written approval from Pathlabs. Such prior approval is conditioned upon Customer acting in strict compliance with the terms and conditions of this Addendum. Upon such prior written approval, Pathlabs will serve Restricted Content on Customer’s behalf. Notwithstanding the foregoing, (i) Pathlabs makes no implied or express representation, warranty, or guarantee of any kind that geographic targeting limitations, any other bidding terms, any pre-bid filter, or other technologies intended to restrict delivery, entered by Pathlabs, will prevent any Restricted Content from being served in violation of Applicable Law; (ii) Customer will remain solely liable for any claims arising out of the delivery of Restricted Content in violation of Applicable Law; and (iii) Customer will defend, indemnify, and hold harmless us and our officers, directors, employees, and agents from any and all Losses incurred by such parties in connection with any Claim arising from the Restricted Content and/or Customer’s breach of this Addendum.
2. Pathlabs will not serve Restricted Content on Customer’s behalf unless Customer is in full compliance with the following requirements: (i) if required by Applicable Law, Customer (or, if Customer is acting on behalf of Advertiser, Advertiser) will have and maintain valid licenses, authorizations, or other permissions for its advertised products, services, and/or activities (“Licenses”); (ii) all Restricted Content will comply with the terms of such Licenses and all Applicable Laws; (iii) if the Licenses are terminated, suspended, or amended in any material way, Customer will immediately inform Pathlabs and, if necessary, instruct Pathlabs to remove the Restricted Content from the Campaign; (iv) Customer will immediately inform Pathlabs if Customer (or, if Customer is acting on behalf of Advertiser, Advertiser) is the subject of any ruling, order, judgment, or decree by any legal, regulatory, or other governmental authority, court, or industry body, which may be relevant to the Restricted Content; (v) Customer will promptly provide Pathlabs with a copy of any Licenses, if applicable, upon Pathlabs’s request; (vi) Customer will comply with Pathlabs’s requests for registrations with the Federal Election Commission or local/state/federal authorities, if applicable, upon Pathlabs’s request; (vii) Customer will comply with Pathlabs’s request for verification of government affiliation and third-party ratings, if applicable, upon Pathlabs’s request; and (viii) Customer shall provide Pathlabs with any instructions necessary to comply with all Applicable Laws.
3. Pathlabs may terminate this Addendum and the Campaign at any time. Pathlabs does not guarantee fulfillment or uptime on the ATB executed against Restricted Content.
4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, SECTION 10, CUSTOMER’S AGGREGATE LIABILITY TO PATHLABS IN RELATION TO THIS ADDENDUM WILL NOT BE SUBJECT TO ANY LIMITATION OF LIABILITY OR DISCLAIMER OF ANY TYPES OR CATEGORIES OF DAMAGES.
5. This Addendum shall supersede and override any prior agreement entered into by Pathlabs and Customer with respect to Restricted Content.
6. The existence of this Addendum shall be deemed Pathlabs Confidential Information. In the event of a conflict between the terms and conditions of this Addendum and the remaining terms and conditions of the Agreement, the terms and conditions of this Addendum will govern.