Effective Date: November 8, 2017
1. Governing Terms.
All IOs between Playwire Media, LLC (“Playwire”) and the Advertiser referenced in the IO shall be governed by the AAAA/IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS VERSION 3.0 (the “IAB Terms and Conditions”) as amended and expanded by this addendum (the “Addendum”). Capitalized terms defined in the IAB Terms and Conditions and the IO will have the same meaning when used in this Addendum unless otherwise defined in this Addendum. This Addendum is subject to change from time to time at Playwire’s sole discretion.
This Insertion Order along with its Terms and Conditions takes precedence over any agreement, purchase order, or other documents signed by and between Playwire and Advertiser.
The following language is added to Section 3.2. of the IAB Terms and Conditions:
Advertiser will make payment on 30 days from the date of invoice. In the event that payment has not been received by the due date, then Advertiser agrees to pay Playwire’s costs of collection including, but not limited to, attorney’s fees and expenses, court costs, and penalties, as well as interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less, from the due date.
Also, if Advertiser fail to pay any amount to Playwire by the due date, Playwire shall be entitled, in its discretion and without prejudice to any other rights which it may have in law, forthwith cancel the IO or suspend performance of its obligations without notice.
Any disputes to any invoice must be raised by Advertiser during this 30-day period or the invoice will be deemed to be correct in all aspects.
3. Advertising Materials.
Except as provided in the IO, Advertiser is solely responsible for creating and delivering to Playwire all Advertising Materials to be displayed on any of Publisher’s websites. Advertiser shall provide all Advertising Materials in accordance with Playwire’s deadlines, policies, and specifications in effect from time to time (the “Specifications”) which are hereby incorporated by reference into this Agreement. Playwire will not issue any credits or provide any alternative Campaign options as a result of any problems with the Advertising Materials or any other errors made by Advertiser.
4. Playwire Approval Right.
At any time and for any reason, Playwire may, in its sole discretion, reject or cancel any Advertising Materials, Ads, or any portion thereof prior to the launch of a Campaign as set forth in the IO.
5. Creative Work
If Playwire performs any work on Deliverables, Advertising Materials, or Ads, that work must be paid for in full by Advertiser, even if Advertiser timely cancels an IO or Campaign.
6. Correction of Advertising Materials.
Advertiser agrees to pay Playwire for its work in correcting these errors in Advertising Materials on a time and materials basis in accordance with Playwire’s rate card. Playwire will not be required under any circumstances to make more than two (2) rounds of revisions. After the second round of revisions, Playwire may charge a higher rate than in the rate card. Advertiser must pay Playwire for this work even if a Campaign and/or is cancelled.
7. Representations; Indemnification.
Advertiser represents and warrants that it holds all necessary rights to permit Playwire use and display of the Advertising Materials and Ads in accordance with the IO, and that no advertising content provided to Playwire will: (a) infringe on any third party’s personal, proprietary, or intellectual property rights; (b) violate any law, rule, or regulation of any governmental or quasi-governmental entity; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses or other harmful or deleterious programming routines. Advertiser agrees to indemnify, defend, and hold harmless Playwire and its employees, agents, and affiliates against any and all expenses, costs, losses, and liability (including reasonable attorneys’ fees) incurred in connection with any third party claims or administrative or criminal investigations or proceedings arising out of or related to (i) any breach of Advertiser’s representations, warranties, or covenants hereunder, (ii) the publication of any Advertisement as contemplated hereunder, and/or (iii) any material, product, or service to which consumers can link through any Advertising Materials and Ads.
8. Disclaimer of Warranties.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, ALL PRODUCTS AND SERVICES PROVIDED BY PLAYWIRE HEREUNDER ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. PLAYWIRE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, PLAYWIRE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACTUAL NUMBER OF VIEWABLE IMPRESSIONS THAT WILL BE DELIVERED OR THE LEVEL OF CONSUMER USAGE OF ANY ADVERTISEMENT.
9. Third Party Work.
Playwire will not enter into contract or subcontract with a third-party provider unless Playwire receives prior written authorization from Advertiser in the IO or in any other document acceptable to Playwire in its sole and absolute discretion.
Any Playwire rates and/or requests for proposals (“RFPs”) are valid for ninety (90) days from the date of the IO.
Advertiser must provide at least forty-five (45) days prior written notice to Playwire prior to the launch date of any Campaign in order to cancel any Campaign set forth in the IO. Failure to provide timely notice shall result in Advertiser being fully liable to all of Playwire’s fees, costs and expenses under the Campaign. The Advertiser understands and agrees that Playwire’s rates, fees and expenses are calculated using this forty-five (45) day period.
If any Deliverables or Ads that are subject to a commission, then the Advertiser must pay any commissions for those Deliverables and/or Ads whether or not the Deliverables or Ads are actually use.
13. Takeovers and Custom Units.
If Advertiser delays in providing the Advertising Materials to Playwire or if the Advertising Materials are not completed on time, then the Advertiser will still be responsible in full for the costs and fees for any page takeovers or custom units.
14. Reports and Data.
Unless set forth otherwise in the IO, all reports will be delivered on a monthly basis during the Campaign. Reports created under the IO will use data and calculations provided by DoubleClick for Publishers, Spotx, and Moat Analytics (“Playwire’s Vendors”). All data will be created by Playwire’s Vendors. Playwire will have sole and exclusive ownership of all data created under any IO.
15. Governing Law and Venue.
The blank spaces in Section XIV(d) of the IAB Terms and Conditions shall be read as “Florida” and “the federal and state courts located in Broward County, Florida,” respectively.
16. Limitations on Liability.
IN THE EVENT PLAYWIRE FAILS TO DELIVER ANY ADVERTISING SERVICES IN ACCORDANCE WITH THE INSERTION ORDER IN ANY RESPECT, THE SOLE LIABILITY OF PLAYWIRE TO ADVERTISER, AND ADVERTISER’S SOLE REMEDY, SHALL BE LIMITED TO, AT PLAYWIRE DISCRETION, EITHER: (A) A REFUND OF ANY AMOUNTS PREPAID FOR SUCH SERVICES (OR AN ABATEMENT OF ANY AMOUNTS THAT WOULD OTHERWISE BECOME DUE FOR SUCH SERVICES), (B) EXTENSION OF THE RELEVANT TERM UNTIL SUCH SERVICES ARE PROPERLY DELIVERED, OR (C) DELIVERY OF OTHER SIMILAR ADVERTISING SERVICES. IN NO EVENT SHALL PLAYWIRE BE RESPONSIBLE FOR ANY INDIRECT, INCIDENTIAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PUBLICATION OF ANY ADVERTISEMENT, EVEN IF PLAYWIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, PLAYWIRE MAXIMUM LIABILITY IN CONNECTION WITH THIS AGREEMENT AND/OR IN CONNECTION WITH THE PUBLICATION OF ANY ADVERTISEMENT SHALL NOT EXCEED THE TOTAL AMOUNT THAT HAS BEEN PAID BY ADVERTISER UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
In the event of any inconsistency between the IAB Terms and Conditions, the corresponding Insertion Order and the Addendum, the superiority of governing terms and conditions are: first, the IO; second, the Addendum; and third, the IAB Terms and Conditions.