AOL International Additional Terms

AOL International Additional Terms
1. Terms and Conditions. The insertion order ("IO") and these Additional Terms will be governed by Version 3.0 of the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, as jointly published by the AAAA and the IAB and governed by English law or, in the event that the parties have executed master terms and conditions, such master terms shall apply (as applicable, the "IO Terms"). "Media Company" or "AOL" means AOL (UK) Limited, AOL Advertising Inc. and all AOL affiliates worldwide, "Advertiser" means the Advertiser stated on the IO, and "Agency" means the advertising agency stated on the IO. If no Agency is listed, where "Agency" is referred to in the Agreement, that reference is deleted and replaced with "Advertiser". If the IO is signed by an Agency, unless it explicitly states otherwise on the IO, Agency enters into this Agreement as principal (notwithstanding anything to the contrary in the IAB Terms) and in such circumstances: (i) Sections III(c) and X(c) of the IAB Terms are deleted; and (ii) references to "Advertiser" in Section X(b) and XIV(a) shall be deemed references to Agency.

2. Policies. Media Company's Policies include the policies located at http://www.advertising.aol.co.uk/terms/. For the purposes of Section X (b) of the IAB Terms, Advertiser and Agency hereby agree that posting changes to the Policies at such URL satisfies the requirement to provide prior notice of such Policies to Agency.

3. Homepage/Premium Placements. With respect to those line items in the media plan attached and incorporated by reference into the IO (the "Media Plan") that reference the placement of AOL Homepage/Premium Advertisements, AOL Welcome Screen Advertisements, AOL Home Page Advertisements or MSN Home Page Advertisements (collectively, "Homepage/Premium Placements"), the following terms will apply:

(a) Agency may terminate Homepage/Premium Placements upon five (5) business days advance written notice to AOL (email to suffice), excluding multi-national campaigns which require thirty (30) business days advance written notice, unless otherwise stipulated on the IO.

(b) Agency's right to terminate Homepage/Premium Placements purchased for the Holiday Period, including but not limited to November 15 to December 23 inclusive of any calendar year, may be subject to a longer termination notice period as stipulated on the IO.

(c) Agency cannot cancel any Homepage/Premium Placements that number three (3) or more dates within a thirty (30) day time period.

(d) AOL may charge Agency a termination fee equal to the full cost listed on the Media Plan for any Homepage/Premium Placement terminated outside of the time limitations specified in this Addendum. For purposes of clarity, any request to re-allocate Homepage/Premium Placements with less than five (5) business days advance written notice will be considered a termination of such Homepage/Premium Placement.

(e) The Homepage/Premium Placements are first party (Media Company) served ad executions. Impression tracking and billing delivery reconciliation will be assessed from the AOL reporting system.

(f) For the avoidance of doubt, AOL will not cover any third-party fees (ie. ad serving, tracking, verification, etc.) for Homepage/Premium Placements.

(g) AOL has the right to re-forecast and adjust Homepage/Premium Placement impression estimates and rates to maintain a sold eCPM in February for Q2 forecasts, in May for Q3, in August for Q4 and in November for Q1.

(h) AOL does not guarantee impressions for flat rate line items on IOs, and all impression amounts listed on the IO in connection with Homepage/Premium Placements are estimates only.

4. ONE by AOL: Display and ONE by AOL: Video. If the IO includes placements on ONE by AOL: Display and/or ONE by AOL: Video Marketplace (collectively, the "Platform") the following terms will apply to such Platform placements: (Note: the following terms only apply when the Platform placements are set forth on the IO and AOL will be managing the campaign within the Platform on behalf of Agency (managed service); separate terms would be required if Agency desires to access and manage campaigns within the Platform UI directly (self-service) or using its own demand side platform or bidder.)

(a) Platform. Agency agrees and understands that AOL will manage and optimize, on behalf of Agency (and its respective Advertiser client), all campaigns set forth on the IO using the Platform, via a second price variable CPM auction environment. Agency understands and agrees that AOL, on behalf of Agency (and its respective Advertiser client), shall have the ability to launch and edit advertising campaign(s) during the flight dates, increase or decrease maximum bids for advertising inventory, set flight dates and frequency limitations, pause/start advertising campaigns, configure optimization objectives and pacing, upload media, access reporting, create retargeting and conversion pixels, and choose placements and targeting.

(b) Advertising Campaigns. Using the Platform, and on behalf of Agency (and its respective Advertiser client), AOL will determine optimization objectives and set a Max eCPM for each advertising campaign. "eCPM" means the average, or "effective" cost per one thousand impressions purchased by AOL on Agency's behalf. The maximum eCPM ("Max eCPM") for any advertising campaign shall be determined by Agency. AOL makes no guarantees or warranties with respect to its ability to deliver the total gross budget amount listed on the IO. Final product cost and deal cost will ultimately be based upon bids, budgets, data, and other costs, which may be affected by the following:

(i) Agency may, at any time during the advertising campaign, request to increase or decrease its Max eCPM. No Max eCPM changes will go into effect until confirmed in writing (including via email) by AOL. AOL makes no representations or warranties that a Max eCPM change will have an impact on volume.
(ii) Agency understands and acknowledges that AOL may, in its sole discretion, implement price floors across sites and inventory sources making up placements in the advertising campaign.
(iii) AOL will, through the Platform, bid on advertising placements based on Agency's stated objectives, but will not exceed the Max eCPM.
(iv) Agency understands and acknowledges that AOL may utilize third party data providers with whom AOL has a contractual relationship ("AOL Data Provider") in connection with the advertising campaigns. If AOL opts to use an AOL Data Provider, AOL will include CPM-based fees for such data provider in the variable CPM rate, which together shall not exceed the Max eCPM.

(c) Billing & Payment Terms. Unless otherwise specified on the IO, AOL will bill Agency monthly based on the Media Cost, as specified below, for all impressions delivered in such month. Notwithstanding any other language on the IO (including in terms incorporated by reference), AOL will bill Agency based on AOL's reported numbers. The "Media Cost" is determined by a second price auction methodology plus any third party data provider fees owed to AOL. If AOL exceeds the Max eCPM in any advertising campaign, AOL will only charge Agency up to the Max eCPM for such advertising campaign.

5. Xbox Placements. With respect to those line items in the Media Plan, if any, that reference Xbox placements, Agency acknowledges that all Xbox placements will be site served by Media Company and that impression reports generated by Media Company or its designated agents are the basis for billing.

6. Xbox Custom Mini-Game, Kinect Gadget or Branded Destination Experience. For Xbox Mini-Game, Kinect Gadget or Branded Experience buys, as between Media Company and Agency (on behalf of itself and Advertiser), Media Company owns all right, title and interest in and to the Xbox mini-game/gadget/branded destination experience, its licensed music, and its code, subject to Agency's ownership of any materials that Agency (on behalf of itself and Advertiser) provided to Media Company (which shall be considered "Advertising Materials" pursuant to the IO Terms) that are contained in the mini-game or gadget.

7. Performance Media Cancellation. Unless otherwise set forth on the IO, CPA Deliverables, CPL Deliverables, and CPC Deliverables will be cancellable by either party on two (2) business days advance written notice.

8. Impression Estimates. Unless otherwise set forth on the IO, any impressions or units listed in association with companion banners to video placements, or CPD (cost-per-day), performance media (CPA, CPC, or CPL Deliverables) or flat fee line items on the IO are estimates only and are not guaranteed.

9. Native Advertising/ Production. With respect to those line items in the media plan, if any, that reference "Production" or Agency's/Advertiser's sponsorship of original custom content, created by AOL or its affiliates, such as articles, listicles, infographics, photo galleries, etc. which may include Commercial Content and Editorial Content (as defined below) (together "Native Content"), the following terms will apply to such placements:

(a) Native Content. Native Content is not considered "Media Company Advertising Materials" pursuant to the IO Terms. Instead, these terms supplement the IO and apply to all line items in the IO pertaining to Agency's/Advertiser's sponsorship of Native Content.

(b) Non-cancellation. All Native Content sponsorships and line items on the IO pertaining to Native Content or "Production" are fully non-cancellable after AOL sends a confirmation email to the Agency following receipt of a signed IO.

(c) Advertiser. Branding and Disclosure. Advertiser will be identified as the sponsor of each piece of Native Content, with "Presented by Advertiser" or similar attribution appearing on AOL's sites wherever a piece of Native Content is displayed in accordance with the Internet Advertising Bureau (IAB) Guidelines on Native Advertising. Upon expiration of the term of the IO, AOL may (but will not be obliged to) remove Advertiser's name or marks from pieces of Native Content on AOL's sites.

(d) Approval. AOL will have creative control over all Native Content; however, Agency shall have the right to final approval of any Native Content which is created to promote Advertiser's goods or services (the "Commercial Content"), such approval not to be unreasonably withheld or delayed. Commercial Content is subject to additional fees for extra rounds of editorial revisions beyond those stated in the timeline provided to Agency on the kick-off call. Cost will depend on the scope of work needed and any additional fees will be presented to Agency before any revisions are made. Agency is responsible for ensuring that Commercial Content complies with applicable laws, regulations and codes of practice, including but not limited to, regulations relating to financial products, gambling, alcohol and the British Code of Advertising Practice.

(e) Native Content Start Date. Agency acknowledges and agrees that the Native Content inventory herein can and may have a different start date than the one listed in the media plan of the IO. AOL will adjust the start date accordingly based on Agency approval (written or otherwise) of the said Commercial Content and/or approval of headlines for any commissioned Editorial Content.

(f) Ownership and Usage.
(i) Advertiser Marks. Any content, data, logos, trade marks, service marks, or other materials provided by Agency or Advertiser (collectively, the "Advertiser Marks") that are incorporated into the Native Content or otherwise used on AOL's sites in connection with the sponsorship (including on a Hub (defined below)) will be owned by Advertiser or Agency (as applicable) and deemed to be "Advertising Materials" pursuant to the IO Terms.
(ii) Commercial Content. Except for any Advertiser Marks, which shall remain the property of Advertiser, as between Advertiser and AOL, AOL (and its licensors, as applicable) shall own all right, title and interest in and to the Commercial Content (including the right to create derivative works therefrom). AOL hereby grants Advertiser a royalty-free, non-transferable, licence during the term of the IO to publicly display and promote the Commercial Content on Advertiser's owned and operated websites and/or Advertiser-branded social media accounts in the same form and format as provided to Advertiser by AOL. Agency shall procure that Advertiser provides attribution to AOL any time the Commercial Content is used, and when used online, the attribution shall include an active link back to the Commercial Content on AOL's site.
(iii) Trade Mark Licence. In performing its obligations under and in accordance with these terms, AOL grants to Advertiser a limited, non-exclusive, royalty-free, licence to use the trade names, trade marks or service marks of AOL (the "AOL Marks"); and Agency (on behalf of itself and Advertiser) grants to AOL and AOL affiliates, a limited, non-exclusive, royalty-free licence to use the Advertiser Marks (collectively, together with the AOL marks listed above, the "Marks"); provided that each party: (i) does not create a unitary composite mark involving a Mark of the other party without the prior written approval of such other party; (ii) displays symbols and notices clearly and sufficiently indicating trade mark status and ownership of the other party's Marks in accordance with applicable trade mark law and practice; and (iii) complies with all written guidelines provided to it by the other party related to use of the other party's Marks. Each party acknowledges the ownership right of the other party in the Marks of the other party and agrees that all use of the other party's Marks will inure to the benefit, and be on behalf, of the other party. Each party acknowledges that its utilization of the other party's Marks will not create in it, nor will it represent it has, any right, title, or interest in or to such Marks other than the licences expressly granted herein.
(iv) Take Down of Commercial Content. Should AOL believe that any particular item of Commercial Content could negatively impact either or both of the parties, AOL may request that Agency removes (and procures that Advertiser removes) such item from any websites or apps where Advertiser has posted such Commercial Content and from any offline uses of such content, and Agency shall (and shall procure that Advertiser shall) pull down and cease displaying any such Commercial Content as soon as practicable but in no event later than two (2) business days after such request.

(g) Indemnification.
(i) AOL will defend, indemnify, and hold harmless Agency, Advertiser, and each of its agents, affiliates, officers, directors, and employees from and against any losses resulting from any claims brought by a third party alleging that the Commercial Content (excluding any Advertiser Marks) when used in accordance with the Agreement infringes the rights of a third party (but only to the extent that such claims do not arise from modifications made by Advertiser or Agency).

(ii) Agency will defend, indemnify, and hold harmless AOL and its agents, affiliates, officers, directors, and employees from and against any losses resulting from any claims brought by a third party alleging that the Advertiser Marks infringe the rights of a third party.

(iii) The parties acknowledge that the above indemnities are subject to the conduct of claims provisions in Section X(d) of the IAB Terms.

(h) Hub. Where Agency/Advertiser has sponsored an entire section of an AOL or Huffington Post site (a "Hub") on which the Native Content will appear, the following terms will apply:

(i) Editorial Content. In addition to the Native Content, AOL may also post to the Hub third-party, original, and/or curated editorial pieces that are thematically aligned and relevant to the topic of the Native Content (the "Editorial Content"). AOL and/or the Huffington Post editorial teams will have sole discretion with respect to the creation, publication and promotion, if any, of the Editorial Content on the Hub. As between AOL and Agency/Advertiser, AOL (and its licensors, as applicable) shall retain all right, title and interest in and to the Editorial Content. Should Agency have any concerns about any of the Editorial Content, Agency may notify AOL and the parties shall work together in good faith to determine a mutually agreeable solution.
(j) Sponsorship Name for Hub. AOL will clear the rights to the name of the Hub (e.g. "Huffpost Post Food for Thought"), and such name and any marks associated therewith will be owned by AOL. Should AOL be unable to clear a Hub name, AOL will propose and work with Agency to determine a suitable replacement name for the Hub.
(k) Hub Sponsorship Term. AOL may remove Advertiser's name and logo as the sponsor of the Hub after the IO term ends.

10. Millennial Media. If the IO includes placements on Millennial Media the following terms may apply to such placements:
(a) Device Identifiers. In connection with the IO Agency, Advertiser or their designated vendor ("Vendor") may receive Device Identifiers related to Advertisements served on behalf of Advertiser ("ID Sharing"). Agency shall not, and shall procure that Advertiser and Vendor shall not, share Device Identifiers received directly or indirectly from Media Company with any third party. Agency/Advertiser and Media Company will not share permanent (i.e. non-resettable) device IDs with each other and to the extent a party becomes aware that it (or in the case of Agency, that Vendor or Advertiser) has provided such device IDs to the other party, it shall notify the other party as soon as commercially reasonable.

(b) Conversion Tracking. Agency warrants and undertakes that it, Advertiser and Vendor shall: (i) not collect, use, transmit, combine, merge, join, synch, combine, link, or analyze any Personal Data with, or otherwise attempt to re-identify, any Device Identifiers received directly or indirectly from Media Company; (ii) only use Device Identifiers it, Advertiser or Vendor receives directly or indirectly from Media Company solely for purposes of calculating conversions pursuant to this IO and frequency capping Ads; and (iii) only use the data received pursuant to this IO on behalf of Advertiser, and no other client of Vendor. For any Device Identifiers provided by Media Company, Agency agrees to provide quality rating information to Media Company for such Device Identifiers for purposes of allowing Media Company to optimize campaign performance for Advertiser. Vendor shall not be considered a third party hereunder and Agency shall ensure that Advertiser and Vendor comply with the restrictions on Advertiser and Vendor set forth herein. Agency agrees to defend, indemnify, and hold harmless Media Company and each of its affiliates and representatives from losses resulting from any claims brought by a third party relating to the ID Sharing or a breach of any obligation, warranty or undertaking provided by Agency in clauses 10(a) and 10(b).

(c) Variable Pricing. Agency (on behalf of itself and Advertiser) understands and agrees that where there is a variable pricing line item for Millennial Media (which may be indicated by "bid" or similar wording) Media Company may fulfil the IO through inventory on Media Company's standard advertising network, as well as, at its sole reasonable discretion, through auction-based exchanges (such as the Millennial Media Exchange, or third party platforms). Agency (on behalf of itself and Advertiser) further acknowledges that auction-based purchasing is dependent upon bid and ask amounts which may be set by Media Company in its sole reasonable discretion (subject to a maximum equal to the rate set forth on the IO, if the rate set forth on the IO is greater than zero, and subject to deductions for fees payable to the third-party auction service provider, if any), and is therefore not guaranteed. Notwithstanding the foregoing, Media Company shall endeavour to meet Agency back-end metrics as provided by Agency from time to time, although Agency (on behalf of itself and Advertiser) understands that such back-end metrics, including without limitation the number of units delivered (subject to a minimum equal to the number of units set forth on the IO, if the number of units set forth on the IO is greater than zero and if the entire campaign amount is spent), are not guaranteed.

(d) User Generated Content. Agency (on behalf of itself and Advertiser) acknowledges and agrees that: (i) content that is generated by end users of the Sites ("User-Generated Ad Content") and incorporated into Ads is done so at Agency's direction, in accordance with the IO and Advertiser's privacy policies; (ii) such User-Generated Ad Content shall be deemed to be Advertising Materials provided by Advertiser; and (iii) Agency must supply Media Company with a copy of (or link to) Advertiser's privacy policy and appropriate and lawful user terms and conditions that apply to such User-Generated Ad Content. Media Company and Agency (on behalf of itself and Advertiser) hereby agree that Agency (or Advertiser as applicable) is the data controller (as defined in the DPA) of any personal data that is shared with Media Company by or on behalf of Agency or Advertiser, or is collected by Media Company at Agency's or Advertiser's request, in connection with any User-Generated Ad Content.

11. Limitation of Liability.
(a) Nothing in this Agreement shall exclude or in any way limit a party's liability for fraud, death or personal injury caused by its own negligence or any other liability to the extent that the same may not be excluded or limited as a matter of law. Subject to this: (1) except in connection with the indemnification obligation under Section X of the IAB Terms, Media Company's (including all companies whose sites are included as part of the AOL Network (the "Participating Companies")) maximum aggregate liability under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise will be limited to direct damages only and will not exceed the fees actually received by Media Company from Agency or Advertiser in connection with the IO to which such claims relate; and (2) in addition to the exclusions in Section XI of the IAB Terms, Media Company, and each Participating Company, shall not be liable to Agency and/or Advertiser, for loss of profits, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure or any loss or corruption of data (regardless of whether these types of loss or damage are direct, indirect or consequential).

(b) Participating Companies shall be deemed third party beneficiaries of the foregoing limitation of liability and also of each Agency/Advertiser's obligations under the Agreement, except for the payment obligations under Section III of the IAB Terms (as if references to Media Company are references to Participating Companies), including Agency/Advertiser's indemnity obligations. Accordingly, Participating Companies shall be entitled to enforce such rights directly against Agency or Advertiser (as applicable). However, this Agreement may be amended without the consent of the Participating Companies. Save in respect of the Participating Companies, a person who is not a party to this Agreement has no right to enforce any term of this Agreement, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
(c) The express provisions in the Agreement are in place of all warranties, representations, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise (including but not limited to implied undertakings of satisfactory quality, conformity with description and reasonable fitness for purpose) and any warranty regarding the performance of any sites, apps or other properties owned, operated or represented by Media Company, all of which are hereby excluded by Media Company to the maximum extent permitted by law. Without limiting the foregoing, Media Company does not guarantee or warrant that any particular number of users will view the Ads, click on the Ads or make any purchases after clicking on the Ads.

12. Data and Privacy.
(a) Agency and Advertiser understand and agree that AOL may use cookies, pixels, web beacons and/or other technologies to collect non-personal data ("Non-PD") from users of site(s) or app(s) on which Advertiser's Ads are served in connection with this Agreement.

(b) Non-PD may include, without limitation, information such as a user's IP address, web pages viewed by a user, date and time, domain type, and responses by a user to an Advertisement. Agency and Advertiser understand and agree that AOL may use Non-PD (in combination with, in certain cases, Personal Data such as a user's AOL registration details) to serve Advertisements.

(c) Where Agency or Advertiser implement an AOL Pixel, Web Beacon or similar technology (including but not limited to, retargeting or conversion tracking) on a given website or app, Agency represents and warrants that it shall (and it shall procure that Advertiser shall) provide notice for, and fully disclose, its privacy policies and practices to visitors to all such sites or apps (including the fact that third party companies may collect and use information about users' visits to such site(s) and app(s) in order to create profiles and deliver targeted advertising to that user/browser/device; and where relevant, the fact that Agency/Advertiser may pass data concerning users' activity on such site(s)/app(s) to third parties, for such purposes), including its use of AOL's services, through the corresponding privacy policy for all such site(s). The privacy policy shall also include clear information to users on the use and purpose of Cookies, Pixels, Web Beacons, and similar technologies, and include information on how users can decline the use of such technologies (including Cookies from AOL). Agency and Advertiser may provide information on advertising Cookies (including how to decline advertising Cookies from AOL) by linking to http://www.youronlinechoices.eu., or for mobile applications a description of how to access an applicable end user enabled privacy device setting (e.g. Apple iOS Limit Ad Tracking).

(d) Where Agency or Advertiser pass data to AOL via a Pixel or otherwise, concerning a given user's (or, a given browser's or device's) activity on a site or app under Agency's or Advertiser's control (for instance, but not limited to, retargeting), Agency represents and warrants to AOL that it shall not (and it shall procure that Advertiser shall not) under any circumstances pass to AOL (i) any data it does not have permission from the relevant user (or, browser/device) to share with AOL, including without limitation where a request has been made by that user (or, that browser or device) that Agency/Advertiser not share that data with third parties; nor (ii) any Personal Data (including for the avoidance of doubt any Sensitive Data), both as defined below.

(e) Agency further represents and warrants that none of the above will cause Agency or Advertiser to be in violation of its privacy policy.

(f) For all campaigns utilising targeting solutions where Agency or Advertiser provide Advertiser Data to AOL or to a Data Provider, Agency warrants and represents that:

(i) it and Advertiser have obtained Advertiser Data in accordance with all applicable laws and regulations, including Data Protection Legislation;

(ii) it and Advertiser have the right to provide the Advertiser Data to AOL and any Data Provider for the purposes of running the advertising campaign with the chosen targeting solutions;

(iii) no Sensitive Data shall be provided as part of the Advertiser Data (and to the extent that any Sensitive Data is provided by or on behalf of Agency or Advertiser to AOL and/or Data Provider, Agency accepts all responsibility for AOL's and/or any Data Provider's use of such Sensitive Data).

(g) Agency grants (on behalf of itself and Advertiser) to AOL and any Data Providers, an irrevocable, non-exclusive, royalty-free, non-transferable licence to use the Advertiser Data for the purposes of providing the agreed campaign targeting services.

(h) Agency shall indemnify, defend and hold harmless AOL and any Data Provider, and their respective officers, directors and employees, from and against any claims caused by AOL's and/or Data Provider's use of the Advertiser Data in accordance with the permissions at clause 12(g), including without limitation any liability for infringing the Intellectual Property Rights or any other rights of any third party or breaching any Data Protection Legislation.

(i) Agency (on behalf of itself and Advertiser) acknowledges and agrees that Data Provider services are not intended to be used as the sole basis for any business decision, and are based upon data which is provided by third parties, the accuracy and/or completeness of which Data Providers (and AOL) cannot guarantee. Data Providers' services may also involve models and techniques based on statistical analysis, probability and predictive behaviour. Therefore, neither Data Provider nor AOL are able to accept any liability for any inaccuracy, incompleteness or other error in the Data Provider Data or any failure of the targeting solutions to achieve any particular result for Agency or any Advertiser.

(j) For all Campaigns utilising targeting solutions (whether or not Agency or Advertiser provides Advertiser Data to a Data Provider or to AOL), Agency shall (and shall procure that Advertiser shall):

(i) use the Third Party Data for the Permitted Purpose only;

(ii) not sell, transfer, sub-license, distribute, commercially exploit or otherwise make available to, or use for the benefit of, any third party any of the Third Party Data;

(iii) not (and will not allow any third party to) adapt, alter, modify, clone, reverse engineer, de-compile or otherwise interfere with the Third Party Data without the prior written consent of the Data Provider.

(k) Agency agrees that the terms contained in this clause 12 shall be directly enforceable by any relevant Data Provider against Agency (and to this end, such Data Provider shall be considered an AOL Affiliate).

(l) The following shall be added to the end of Section XII.d.ii. of the IAB Terms: For the avoidance of doubt, and notwithstanding anything contained in the Agreement, Media Company may use aggregate data and/or non-personally identifiable data that is generated or collected in connection with the IO (collectively "Permitted Data") for reporting purposes, optimizing network performance, and other legitimate business purposes of Media Company, so long as the Permitted Data or its use does not identify Advertiser (or Advertiser's brand), and is not used to target based upon Advertiser's (or Advertiser brand's) identity.

13. Viewability - vCPM Deliverables. With respect to those line items in the Media Plan, if any, that reference the placement of vCPM Deliverables, the following terms will apply:

a. In-View Definition. Where designated by a vCPM on the IO, the Deliverable to meet the purchased quantity will be "In-View" impressions as defined below:

  1. For purposes of display inventory, an impression is considered "In-View" to a user when at least fifty percent (50%) of the pixels in the ad are in the viewable browser window for a minimum of one (1) second; however, for display ads sized at 242,500 pixels (which is equivalent to the size of a 970x250 pixel display ad) or greater, an impression is considered "In-View" to a user when at least thirty percent (30%) of the pixels in the ad are in the viewable browser window for a minimum of one (1) second.
  2. For purposes of Video inventory, an impression is considered "In-View" to a user when at least fifty percent (50%) of the pixels in the ad are in the viewable browser window for a minimum of two (2) consecutive seconds.
  3. For the purposes of mobile inventory, an impression is considered "In-View" to a user when at least fifty percent (50%) of the pixels (Density Independent) in the ad are on an in-focus mobile browser or a fully downloaded, opened, initialized application, on the viewable space of the device for a minimum of one (1) second, post ad render. "Density-Independent Pixel" is an abstraction from physical screen pixels meant to simplify application and content development across devices of different screen densities (identical to a Cascading Style Sheet or CSS pixel). One Density-Independent Pixel corresponds to roughly one device pixel on a device with roughly 160 DPI or 1/160th of an inch.

b. Delivery; Payment. It is understood by all parties that a level of impression overdelivery is required to meet vCPM Deliverables. Agency agrees to be responsible for all Third Party Ad Server fees associated with such overdelivery, unless otherwise agreed upon by the parties in writing on the IO. No makegood shall be honored related to underdelivery of vCPM Deliverables. Advertiser will be billed based on actual delivery of In-View impressions (subject to the terms below regarding Unmeasured Impressions), up to the purchased amount.

c. Vendor; Controlling Measurement. The viewability reporting vendor ("Vendor") used to track In-View impressions must be MRC-accredited and AOL-certified and approved. Agency shall be solely responsible for all costs associated with Agency's use of Vendor unless explicitly stated otherwise. Vendor will be the "Controlling Measurement" used to track and invoice delivery of In-View impressions, subject to the terms below. However, notwithstanding the foregoing, if Agency is responsible for Vendor and AOL is also tracking delivery of In-View impressions with its own MRC-accredited vendor ("1st Party Vendor") and the difference between the measurements exceeds 10% over the invoice period and the Vendor measurement is lower, then AOL may use the 1st Party Vendor numbers as the "Controlling Measurement" to invoice delivery of In-View impressions, subject to the terms below.

d. Unmeasured Impressions. For vCPM Deliverables, Media Company reserves the right to bill on any impressions that are not tracked or measured by the Controlling Measurement ("Unmeasured Impressions") using the percentage of measured impressions that are In-View as the basis for extrapolation. Specifically, Agency and Media Company agree to allow billing on Unmeasured Impressions as an extrapolation of the In-View percentage of measured impressions, where In-View impressions divided by the total number of measured impressions equals the In-View percentage, and the product of the In-View percentage and the number of Unmeasured Impressions equals the number of extrapolated Unmeasured Impressions to be billed at the vCPM rate. For example: 800,000 impressions purchased. 1,000,000 impressions delivered. 900,000 impressions measured. 700,000 impressions In-View. In-View percentage: 700,000 / 900,000 = 78% Unmeasured Impressions: 1,000,000 – 900,000= 100,000 Billable Unmeasured Impressions: 100,000 * 78%= 78,000 Advertiser will be billed for 700,000 In-View impressions + 78,000 Billable Unmeasured Impressions, for a total of 778,000 impressions billed at the vCPM rate.

e. 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 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 on a daily basis throughout the campaign. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary. Video inventory requires site-level data on all reports. If the party responsible for the Controlling Measurement fails to provide the required reports or reporting access, the other party may use or provide its own statistics as the basis for calculating and invoicing In-View impression delivery.

f. Exclusions. Unless otherwise specifically agreed to by AOL and set forth on the IO, AOL will not guarantee viewability on the following inventory, and the above vCPM terms are not applicable to the following placements:

  1. AOL Front Doors (AOL.com homepage, MQ homepage, Huffington Post Front Page, Email Login).
  2. Native advertising products
  3. Premium formats (including but not limited to wallpaper, pushdown, iPad).
  4. Roadblocks
  5. Sponsorships
  6. Certain Video placements including: BeOn/branded syndication products, audience guarantees, connected tv, sponsorships, companion banners, overlay ads, and CPC and CPCV products.


14. Viewability Thresholds. With respect to those line items in the Media Plan, if any, that specify a Viewability Threshold, the following terms will apply:

a. Viewability Threshold; In-View Definition. AOL agrees to hold to a threshold guarantee of viewability for certain placements in this campaign as indicated in the IO. Each line item on the IO to which a viewability threshold applies shall clearly state the percentage of impressions that Media Company agrees to deliver In-View (the "Viewability Threshold").

  1. For purposes of display inventory, an impression is considered "In-View" to a user when at least fifty percent (50%) of the pixels in the ad are in the viewable browser window for a minimum of one (1) second; however, for display ads sized at 242,500 pixels (which is equivalent to the size of a 970x250 pixel display ad) or greater, an impression is considered "In-View" to a user when at least thirty percent (30%) of the pixels in the ad are in the viewable browser window for a minimum of one (1) second.
  2. For purposes of Video inventory, an impression is considered "in-view" to a user when at least fifty percent (50%) of the pixels in the ad are in the viewable browser window for a minimum of two (2) consecutive seconds.
  3. For the purposes of mobile inventory, an impression is considered "In-View" to a user when at least fifty percent (50%) of the pixels (Density-Independent) in the ad are on an in-focus browser or a fully downloaded, opened, initialized application, on the viewable space of the device for a minimum of one (1) second, post ad render. "Density-Independent Pixel" is an abstraction from physical screen pixels meant to simplify application and content development across devices of different screen densities (identical to a Cascading Style Sheet or CSS pixel). One Density-Independent Pixel corresponds to roughly one device pixel on a device with roughly 160 DPI or 1/160th of an inch.

b. Vendor; Controlling Measurement. The viewability reporting vendor ("Vendor") used to track In-View impressions must be MRC-accredited and AOL-certified and approved. Agency shall be solely responsible for all costs associated with Agency's use of Vendor unless explicitly stated otherwise. Vendor will be the "Controlling Measurement" used to track delivery of In-View impressions, subject to the terms below. However, notwithstanding the foregoing, if Agency is responsible for Vendor and AOL is also tracking delivery of In-View impressions with its own MRC-accredited vendor ("1st Party Vendor") and the difference between the measurements exceeds 10% over the invoice period and the Vendor measurement is lower, then AOL may use the 1st Party Vendor numbers as the "Controlling Measurement" to invoice delivery of In-View impressions, subject to the terms below.

c. In-View Percentage. The percentage of impressions that were delivered In-View will be calculated by dividing the number of In-View impressions by either (a) the total number of impressions that were measured or tracked by the Controlling Measurement or (b) the total number of impressions purchased by Advertiser, whichever is less (the "In-View Percentage").

For example: 1,000,000 impressions purchased. 1,500,000 impressions delivered. 1,300,000 impressions measured. 700,000 impressions In-View. The number of impressions purchased (1,000,000) is less than the number of impressions measured by the Controlling Measurement (1,300,000), so we use the number of impressions purchased in our calculation: In-View Percentage: 700,000 / 1,000,000 = 70%

d. Delivery; Payment. It is understood by all parties that a level of impression overdelivery may occur. Agency agrees to be responsible for all Third Party Ad Server fees associated with such overdelivery, unless otherwise agreed upon by the parties in writing on the IO. Advertiser will be responsible for paying for all impressions delivered, up to the purchased amount.

e. Makegoods. If the In-View Percentage falls below the agreed Viewability Threshold per plan (overall, across all line items to which the Viewability Threshold applies), a makegood will be issued to cover the difference. Makegoods will be calculated based on end of campaign reporting and valued as the number of impressions required to reach the Viewability Threshold. Makegoods will be delivered on products of AOL's choosing, and must run within three months of the campaign end date, otherwise such makegoods will be forfeited.

f. 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 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 on a daily basis throughout the campaign. Notification may be given that access, such as login credentials or automated reporting functionality integration, applies to all current and future IOs for one or more Advertisers, in which case new access for each IO is not necessary. Video inventory requires site-level data on all reports. If the party responsible for the Controlling Measurement fails to provide the required reports or reporting access, the other party may use or provide its own statistics as the basis for calculating and invoicing In-View impression delivery.

g. Exclusions. Unless otherwise specifically agreed to by AOL and set forth on the IO, AOL will not guarantee Viewability Thresholds on the following inventory, and the above terms are not applicable to the following placements:

  1. AOL Front Doors (AOL.com homepage, MQ homepage, Huffington Post Front Page, Email Login).
  2. Native advertising products
  3. Premium formats (including but not limited to wallpaper, pushdown, iPad).
  4. Roadblocks
  5. Sponsorships

Certain Video placements including: BeOn/branded syndication products, audience guarantees, connected tv, sponsorships, companion banners, overlay ads, and CPC and CPCV products. - See more at: http://advertising.aol.com/specs/terms/aol-viewability-terms#sthash.AjFExs9X.dpu

15. Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party becomes insolvent, enters into liquidation, whether voluntary or compulsory, passes a resolution for its winding up, has a receiver or administrator appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt.

16. Definitions.

"Advertiser Data" means any user data supplied by Agency or Advertiser for use in connection with its advertising campaign.
"Agreement" means the IO, the IO Terms and these Additional Terms.
"CPCV" means cost per user initiated completed view of video content.
"CPE" means cost per Engagement.
"CPV" means cost per user initiated click to view video content.
"Data Protection Legislation" means (i) in EU countries the Data Protection Directive (95/46/EC) (as such Directive may be amended or replaced from time to time) and all local laws or regulations giving effect to this Directive (including without limitation the UK Data Protection Act 1998 (the "DPA")); and (ii) in non-EU countries, any similar or equivalent laws, regulations or rules relating to information or data about individuals.
"Data Provider" means a third party data provider, such as Experian.
"Device Identifiers" means Apple IDFAs and Android Advertising IDs.
"Engagement" shall be defined on each IO.
"IAB Terms" means version 3.0 of the IAB/AAAA Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less at the http://adspecs.aol.com/terms/iab.
"Intellectual Property Rights" means any and all copyrights, patents, trademarks, trade secrets, and any other intellectual property rights recognized under applicable law associated with or relating to a party's proprietary data, software, materials, technologies, processes, and methodologies, and any all extensions, modifications and enhancements thereto, and derivative works thereof.
"Partner Data" means any data provided by one of AOL's third party service provider partners (or on their behalf) to AOL that AOL then provides to Agency or Advertiser in connection with this Insertion Order.
"Permitted Purpose" means the delivery of the online ad targeting solutions which Agency has booked under the relevant AOL Insertion Order.
"Personal Data" means "personal data" as defined in the DPA.
"Sensitive Data" means "sensitive personal data" as defined in the DPA.

17. Taxes. Each Party shall be solely responsible for corporate income taxes on any income derived from this Agreement.

Fees due to AOL under this Agreement are calculated before consideration of any value added tax, goods and sales taxes, or other indirect taxes ("Indirect Taxes") applicable to the transaction. Indirect Taxes may be added to invoices as required by law, and you are responsible for payment of such Indirect Taxes. All payments made by you under this Agreement shall be made free and clear of and without deduction or withholding for or on account of any withholding taxes unless such deduction or withholding is required by applicable law. You shall promptly notify AOL of such withholding. You shall be entitled to deduct such withholding from the amount payable to AOL and shall provide AOL with an original receipt (or other documentation necessary) evidencing payment of such withholding tax, and such assistance as AOL may reasonably require for AOL to claim a tax credit for such deduction or withholding, provided that the Parties shall cooperate in good faith and use reasonable efforts to minimize the withholding tax due.

18. Notices. In Section XIV (e) of the IAB Terms, the period of 'three days' shall be replaced with 'on the second working day following the date of posting' and the reference to 'deposit, postage paid, in U.S. Mail' shall be replaced with 'posting in first class, pre-paid post'.

19. Entire Agreement. Section XIV.c of the IAB Terms shall be deleted. This Agreement constitutes the entire agreement of the parties with respect to the subject matter and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO.

AOL International Additional Terms v. 3 (14.03.17)