These Terms and Conditions for Buyers (the “Terms and Conditions”) are incorporated by reference into each Buyer Insertion Order, which specifically refers to these Terms and Conditions, executed by and between ANTIPODES DIGITAL, S.L. (“Antipodes”) and Client. Each Insertion Order together with these Terms and Conditions, form the “Agreement”. In case of discrepancy between the Insertion Order and these Terms and Conditions, the Insertion Order will prevail.
1. SERVICES. Antipodes will facilitate transactions between the Client (Buyer) and third parties (each of them, a Publisher) in order to purchase, create and/or display ads on Publisher´s sites and other digital properties owned and/or managed by each Publisher (“Publisher´s Properties”), as well as manage and optimize Publisher´s advertising inventory located on the said Properties (the “Services”). Buyers shall purchase such advertising inventory to deliver promotion activity to the Client´s Properties (“Advertisements”). Advertisements will be provided in video format, will be displayed on a programmatic basis and will be sold on a CPM basis, according to the relevant Insertion Order.
Publishers will be selected in Antipodes’ sole discretion. Notwithstanding the preceding sentence, Client may by written notice to Antipodes elect to refrain from transaction with any such Publisher. “Publisher” means any party engaged in offering its advertising inventory to buyers interested in purchasing, creating, placing or utilizing Advertisements on Publisher´s Properties, including without limitation, media, direct advertisers, agencies, ad exchanges and/or ad servers.
2. OBLIGATIONS. Client will provide Antipodes with Client’s “advertising tags”, Client’s Advertisements and such other content, information and data (collectively, the “Client Content”) according to the technical format and specifications contained within the Insertion Order or otherwise as determined in Antipodes’ reasonable discretion. Client hereby agrees to cooperate with Antipodes to enable the provision of the Services, and comply with instructions provided by Antipodes to Client in connection with Antipodes’ provision of Services hereunder.
An Antipodes´ account will be created in connection with Client’s use of the Services (the “Account”), to be accessed and/or used by employees, agents, clients, and independent contractors of Antipodes (each a “Permitted User”). Antipodes acknowledges and agrees: (i) to keep, and ensure that Permitted Users keep all Account login details and passwords secure at all times; and (ii) to promptly notify the Client in writing if Antipodes becomes aware of any unauthorized access or use of Antipodes’ Account.
3. TERM. TERMINATION. CHANGES. The Agreement shall commence on the date of the Insertion Order and continue until terminated by the parties as provided herein (the “Term”). Notwithstanding the preceding sentence, either Party may cancel an Insertion Order at any time with two (2) business days notice (notice via email will be valid). Termination of this Agreement shall not relieve either party from payment obligations arising prior to such termination. For the shake of clarity and by way of example, if Client cancels an Insertion Order, Client shall only be responsible for the previously delivered impressions and revenue. No change, modification, alteration or addition of or to any provision of the Agreement shall be binding unless in writing and executed by or on behalf of both Parties by a duly authorized representative. Nonetheless, modifications of an Insertion Order shall be binding if made, acknowledged and accepted in writing (fax, letter, email) by an authorised representative of the Parties. Impression levels and CPMs can be adjusted through email confirmation.
4. CONSIDERATION. REPORTING. All amounts due and owed to Antipodes by the Client shall be paid within 30 days as of the invoice date. Payments shall be done in US Dollars, unless otherwise stated in the relevant Insertion Order. Any amount payable to Antipodes is exclusive of applicable taxes (including without limitation VAT), withholdings or duties, and the amounts set forth in the Agreement are the net amounts which Antipodes shall be paid by Client hereunder. All taxes, withholdings and duties of any kind payable with respect to Client’s use of the Services arising out of or in connection with this Agreement, other than taxes based on Antipodes’ net income, shall be borne and paid by Client. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of two and a half percent (2.5%) per month; or (ii) the highest amount permitted by applicable law.
Reporting on impression numbers and CPMs is based on Antipodes’ statistics. The average CPM to be paid to Antipodes will always be equal to or above the CPM floor as specified on the Insertion Order. “Floor CPM” means the CPM designated on the Insertion Order under the heading “Floor CPM” (if any). The Floor CPM shall be calculated based on the monthly impressions actually served, as calculated in accordance with Antipodes’ transaction records for such month.
Antipodes’ statistics on impression numbers will be binding for the Parties unless there is a discrepancy between Antipodes´ reported impression statistics and Client´s impression statistics of five percent (5%) or more. In that instance Parties shall work together in good faith to resolve such discrepancy. In the event that the Parties are not able to resolve such discrepancy, then the amount due to Antipodes shall be the amount equal to: the amount calculated by Antipodes to be due to Antipodes plus the amount calculated by the Client to be due to Antipodes divided by two (2).
5. REPRESENTATIONS & WARRANTIES. Client hereby represents and warrants to Antipodes that (a) this Agreement is a duly authorized, binding agreement of Client and all necessary actions of Client have been taken to authorize this Agreement. Client represents; (b) the video advertising does not and will not contain: (i) any content that is defamatory, libelous, or that violates any applicable law or regulation, (ii) any content that infringes or violates any copyright, trademark, patent, right of publicity, right of privacy, moral right, or other right of any third party, (iii) any content that contain nudity, pornography, or offensive graphics, content or language; (iv) any content that is hate material or inappropriate or controversial subject matter of any nature, including without limitation that which pertains to illegal activity.
Antipodes hereby represents and warrants to Client that (a) this Agreement is a duly authorized, binding agreement of Antipodes and all necessary actions of Antipodes have been taken to authorize this Agreement; (b) it will do its best efforts to obtain contractual representations from Publishers that Publishers will not prevent or inhibit the display of the Advertisements in whole or in part and that Advertisements will not appear before, after or next to any defamatory, obscene or unlawful content.
Each party represents to have all necessary licenses, rights and clearances to perform its obligations under the Agreement.
THIS SECTION CONTAINS THE ONLY WARRANTIES, EXPRESS OR IMPLIED, MADE BY ANTIPODES. ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE EXPRESSLY EXCLUDED AND DISCLAIMED. ANTIPODES DISCLAIMS ANY IMPLIED WARRANTIES, PROMISES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NON-INFRINGEMENT, AND FURTHER DISCLAIMS ALL WARRANTIES WITH REGARD TO THE RESULTS CLIENT MAY OBTAIN (INCLUDING THE BUYING OF THE PUBLISHER´S ADVERTISING INVENTORY) FROM ENTERING INTO THIS AGREEMENT. THE ANTIPODES SERVICES ARE AVAILABLE ON AN “AS-IS” BASIS AND ANTIPODES DISCLAIMS ALL WARRANTIES RELATED THERETO EXCEPT AS EXPRESSLY SET FORTH HEREIN. UNDER NO CIRCUMSTANCE SHALL ANTIPODES HAVE ANY LIABILITY TO CLIENT OR ANY THIRD PARTY EXCEPT FOR ANTIPODES’ INTENTIONAL MISCONDUCT. ANTIPODES DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING ANY PUBLISHER ENTITY AND CLIENT ACKNOWLEDGES THAT ALL ISSUES REGARDING ADVERTISEMENTS PLACED BY A PUBLISHER AND ALL TECHNOLOGIES, PRODUCTS OR SERVICES DELIVERED BY A PUBLISHER ARE BETWEEN CLIENT AND SUCH PUBLISHER.
6. LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, NOR SHALL ANY PARTY BE LIABLE TO THE OTHER FOR DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION, AND THE LIKE, INCURRED BY EITHER PARTY ARISING OUT OF THIS AGREEMENT (PROVIDED THAT THIS LIMITATION SHALL NOT LIMIT CLIENT’S OBLIGATION TO INDEMNIFY HEREUNDER), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ANTIPODES OR ANY OF ITS AFFILIATES BE LIABLE TO CLIENT FOR AN AMOUNT IN EXCESS OF THE FEES ACTUALLY RECEIVED BY ANTIPODES PURSUANT TO THIS AGREEMENT. IN NO EVENT WILL ANTIPODES OR ITS AFFILIATES BE LIABLE FOR ANY DEFECT OR FAILURE OF ANY SYSTEM USED BY ANY PUBLISHER ENTITY.
7. INDEMNIFICATION. Client agrees to indemnify, defend, and hold harmless Antipodes (including its respective officers, directors, employees, shareholders, affiliates, representatives and agents) from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys’ fees) and damages arising out of or in connection with any (a) violation of applicable laws, rules or regulations; (b) products and/or services contained in any Advertisement; (c) infringement of an intellectual property right or other right of any third party by Client; (d) any claim by a third party arising out of or relating to Client’s actions, omissions, or obligations under this Agreement; or (e) breach by Client of any representation, warranty, or covenant set forth in this Agreement. Antipodes agree to indemnify, defend, and hold harmless Client (including its respective officers, directors, employees, shareholders, affiliates, representatives and agents) from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys’ fees) and damages arising out of or in connection with Antipodes’ gross negligence or willful misconduct.
8. LICENSES. Subject to the terms of this Agreement, Client hereby grants to Antipodes a non-exclusive, non- transferrable, non-sublicense able, worldwide, royalty-free license to use Client’s trademarks, trade names and logos (the “Client Marks”) and for using the Client Marks in Antipodes’ presentations, marketing materials, client lists and web listings of clients. Client grants no other rights than are expressly granted hereunder, and Antipodes acknowledges Client’s exclusive ownership of the Client Marks. Antipodes agrees not to take any action inconsistent with such ownership. Client may terminate, in whole or in part, the Antipodes’ license granted under this section if, in Client’s sole discretion, such use does not meet such party’s then-current trademark usage policy or similar policies.
9. CONFIDENTIALITY: “Confidential Information” means any tangible and intangible non-public information in any form (including written information, oral statements and electronically stored data) which a party discloses (the “Discloser”) to the other party (the “Recipient”) including, without limitation, information relating to trade secrets, systems, know-how, products, processes (including manufacturing processes), inventions, computer software programs, marketing or sales techniques, financial condition, costs, business interests, initiatives, objectives, plans, strategies, customers, suppliers, lenders, underwriters, or employees, that is marked as confidential or identified at the time of disclosure as being confidential or is otherwise disclosed under circumstances that would lead a reasonable person to conclude that such information is confidential, excluding information that: (a) was in Recipient’s possession before receipt from the Discloser; (b) is in or enters the public domain without a breach of this Agreement; (c) is rightfully received by Recipient from a third party without a duty of confidentiality; (d) is disclosed by the Discloser to a third party without a duty of confidentiality; or (e) is independently developed by Recipient without use of or reference to the Discloser’s Confidential Information. Recipient will protect the Confidential Information, for three (3) years from the date of disclosure, by using at least the same degree of care as it uses to protect its own Confidential Information, but no less than a reasonable degree of care, to prevent unauthorized use, disclosure or publication. Not limiting the foregoing, Recipient: (a) will not use, disclose, make available or reproduce the Confidential Information (or permit others to do so) except as expressly authorized in this Agreement; (b) will not disclose any such Confidential Information to anyone except employees and directors of Recipient to whom disclosure is necessary for the performance of the Agreement; and (c) will appropriately notify such employees and directors that the disclosure is made in confidence and will be kept in confidence in accordance with this Agreement. If Recipient becomes aware of any loss or unauthorized disclosure of Confidential Information, Recipient will promptly notify Discloser of such and use reasonable efforts to retrieve such Confidential Information. Recipient’s disclosure of Confidential Information pursuant to a judicial or administrative order will not be deemed to be a breach of this Agreement, provided Recipient (i) provides timely written notice of such order to the Discloser and (ii) reasonably cooperates with the Discloser’s efforts to contest or limit the scope of such order.
10. MISCELLANEOUS: Any Insertion Order entered into between the parties shall be deemed to incorporate these Terms and Conditions. The Agreement shall constitute the full Agreement between the Parties with respect to its subject matter and shall supersede any and all prior agreements and understandings relating thereto. The Parties are independent contractors and the Agreement does not establish an employer/employee relationship, joint venture, agency or partnership between the parties. Neither party shall assign any of its rights or obligations under this Agreement to any other entity without the other party’s prior written consent; provided that Antipodes may assign or transfer the Agreement and its rights under the Agreement to an entity acquiring all or substantially all of the assigning Antipodes’ assets, whether by acquisition of assets or shares or by merger or consolidation. Each party agrees to perform acts and to execute and deliver any further documents as may be reasonably necessary to carry out the intent and provisions of the Agreement. Notwithstanding anything else contained herein to the contrary, Antipodes shall not be in default or otherwise liable for any delay in or failure of its performance under this Agreement where such delay or failure of its performance arises by reason of any Act of God, actions of any government or any governmental body, acts of war, the elements, strikes or labor disputes, or other cause beyond the control of Antipodes. If any of the terms contained in this Agreement shall, for any reason, be held to be void or unenforceable, it shall not affect the validity or enforceability of any other term in this Agreement. The failure of either party to enforce at any time any of the provi¬sions of this Agreement will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either Party to enforce each such provision thereafter. The Agreement may be executed and delivered (including by fax or other electronic means) in any number of counterparts, each of which shall be an original and all of which together shall constitute one and the same document. Notices to be given or submitted by either Party to the other pursuant to this Agreement shall be in writing, by fax, mail or email and shall be sent to the address for each Party set forth on the relevant Insertion Order, or at such other address as shall be given by either Party to the other in writing. Notice shall be considered effective on the earlier of actual receipt or: (a) the day following transmission if sent by a facsimile or email followed by a written or electronic confirmation; (b) two (2) days after posting when sent via an express commercial courier; or (c) five (5) days after posting when sent via certified mail. This Agreement shall be governed by and construed under the laws of Spain without reference to principles and laws relating to the conflict of laws. The competent court of the city of Madrid (Spain), shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. Notwithstanding the foregoing, Antipodes may seek injunctive or other equitable relief in any jurisdiction in order to protect its property rights.
