AOL Advertising Publisher Terms and Conditions
These AOL Publisher Terms and Conditions, the Addendums and Schedule A attached hereto and incorporated by reference (this "Agreement"), between AOL (UK) Limited. ("AOL"), and you ("Publisher") govern Publisher's participation in the ad.com Network and shall replace any and all prior agreements entered into by and between AOL and Publisher.
1. Prohibited Content.
1.1 Publisher acknowledges that AOL does not accept any Media that contains: indecent, obscene or pornographic material, hate speech, highly explosive subject matter (as determined by AOL), any illegal subject matter or activities, any other content that does not meet AOL's Network quality standards as in effect from time to time or the standards contained in the Digital Trading Standards Group Code of Conduct ("DTSG Code") (collectively referred to as the "Prohibited Content").
1.2 Publisher represents and warrants that during the term of this IO any of its Media on which it places Creatives shall not contain any Prohibited Content. In addition, and without prejudice to the above representations and warranties, Publisher agrees to the terms of the DTSG Code and the content standards set out in Schedule A of this Agreement.
1.3 Publisher represents and warrants that during the term of this agreement any of its Media on which it places Creatives shall not contain any Prohibited Content.
2. Approval; Selecting Creatives
2.1 Participation in the Network is subject to prior approval of AOL, and AOL reserves the right to withhold approval to participate in the Network for any reason whatsoever.
2.2 Approval for participation in the Network is limited only to the specific Media for which Publisher has applied for approval and is limited to the specific URLs and Email Lists identified, as applicable.
2.3 Creatives may not be placed within any Media not specifically approved for participation in the Network. Although Publisher may apply for more than one type of Media (i.e., Web Sites and Email Lists), each Web Site, Email List or other Media must be submitted for specific approval. Approved Media will be specified in the IO or in an addendum attached to the IO. In addition, AOL may approve additional Media in writing (with email being sufficient) in its sole discretion. Creatives may not be placed on any surf bars or any other downloadable software applications or any advertising space created by such bars or downloadable software applications without AOL's prior written approval.
2.4 Upon approval for participation in the Network, Publisher shall have the option of placing AOL's Run of Network code on its Web Site and choosing from the Currently Available Creatives for all of Publisher's Media.
2.5 If Publisher chooses offers from the Currently Available Creatives, Publisher agrees to use the Currently Available Creatives that Publisher selects only in connection with the particular Media for which such Creative is available, in accordance with the traffic instructions set forth at the time of selection, and only on Media that have been specifically approved by AOL pursuant to this Agreement. Even if the same Creative is available in the Network for more than one type of Media (i.e., the same Creative appears for Web Sites and Email Lists),
2.6 CREATIVES MUST BE ACCEPTED INDIVIDUALLY FOR EACH TYPE OF MEDIA. NO PUBLISHER MAY PLACE A CREATIVE ON ANY WEB SITE OR DELIVER A CREATIVE TO ANY EMAIL LIST OTHER THAN THE WEB SITE OR EMAIL LIST FOR WHICH SUCH CREATIVE WAS ORIGINALLY INTENDED AND ACCEPTED.
2.7 Publisher shall not use Creatives previously selected from the Currently Available Creatives for delivery in Publisher's Media at later dates, unless such Creatives continue to be available in the then Currently Available Creatives for such Media AND such Creatives have Units remaining for delivery.
2.8 AOL reserves the right to pay Publishers only for Units delivered on approved Media which were appropriately selected and delivered from the then Currently Available Creatives, and for Units which were delivered on approved Media using AOL's Run of Network code.
2.9 PUBLISHER AGREES TO REVIEW THE AVAILABILITY OF CREATIVES THAT THEY HAVE PLACED WITHIN THEIR MEDIA ON A REGULAR AND TIMELY BASIS. IT IS THE PUBLISHER'S SOLE RESPONSIBILITY TO CHANGE CREATIVES WITHIN THEIR MEDIA WHEN A CREATIVE IS NO LONGER AVAILABLE IN THE NETWORK OR HAS NO UNITS REMAINING FOR DELIVERY.
2.10 AOL ASSUMES NO RESPONSIBILITY FOR NOTIFYING A PUBLISHER WHEN AN ADVERTISEMENT IS NO LONGER AVAILABLE IN THE NETWORK OR HAS NO UNITS REMAINING FOR DELIVERY.
2.11 Publisher's participation in the Network is non-exclusive and all inventory is pre-emptible at Publisher's sole discretion.
3. Prohibited Activities.
3.1 Publishers shall NOT induce persons to click on Creatives based on incentives without the prior written approval of AOL, which, if provided, is subject in each case to the following conditions: (i) Publisher will be allowed to place Creatives for CPA campaigns ONLY; and (ii) Publisher shall be provided with access to the Network's Member ID Passing Tool to track member rewards.
3.2 The Member ID Passing Tool will enable Publisher to run CPA campaigns and ensure that incentive rewards are allocated to the appropriate member of Publisher's Media by providing Publisher with a way to add a unique, anonymous member ID to each CPA Creative delivered.
3.3 PUBLISHER REPRESENTS AND WARRANTS THAT ANY UNIQUE
MEMBER ID USED BY SUCH PUBLISHER SHALL: (a) BE ANONYMOUS; (b) NOT INCLUDE ANY PERSONALLY IDENTIFIABLE INFORMATION; AND (c) COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS, INCLUDING, WITHOUT LIMITATION, ALL PRIVACY LAWS AND REGULATIONS.
3.4 Publisher shall NOT serve Creatives, or drive traffic to such Creatives, using any downloadable applications without the prior written approval of AOL, which, if provided, is subject in each case to the following condition: Creatives delivered in approved downloadable applications may only be shown once per user session when the application is active, enabled and clearly recognizable by the end user as being active and enabled.
3.5 Serving Creatives at anytime when the downloaded application is not active is strictly prohibited and grounds for immediate termination without pay.
3.6 Except as otherwise provided in this Agreement, under no circumstances may a Publisher, without the prior, express written consent of AOL, alter, copy, modify, take, sell, re-use, or divulge in any manner any Creatives or AOL computer code provided by AOL; provided that Publisher may, without prior approval, change the font type, font style, and font size of text-link advertisements offered on the Network only for the purpose of matching the font in Publisher's Media.
3.7 The following methods of generating visitor interest in Publisher's Media or Creatives are prohibited and may be grounds for immediate termination from the Network, in addition to other remedies available to AOL:
(a) mailing emails to persons other that those persons who have requested to receive such emails (i.e., spamming);
(b) use of unsolicited email or inappropriate newsgroup postings to promote Publisher's Media or Creatives;
(c) autospawning of browsers; automatic redirecting of visitors; blind text links; misleading links, forced clicks (a person should never be 'forced' to click on a Creative because their browser has been hijacked, or because a Creative has been altered so that it is impossible to close without clicking it); or any other method that may lead to artificially high numbers of delivered clicks; purchasing keywords from a search engine service provider that include the trademark, service mark, or brand name of the advertising client to which the applicable Creative relates, or any derivative of any such trademark, service mark, or brand name ("Advertiser Marks"), or
(d) purchasing online advertising inventory for purposes of running advertisements that include Advertiser Marks on Web Sites or within emails.
3.8 Publisher recognizes that a breach of the conditions detailed in Sections 1 and 3 could result in immediate, extraordinary and irreparable damage to AOL and its relationships with its advertising clients, and that damages may be difficult to measure. Therefore, Publisher agrees that should they violate the foregoing conditions of Section 1 and 3, AOL may, in addition to other legal remedies, assess liquidated damages of up to £1,000.00 G.B.P. per occurrence of each such violation, and that such liquidated damages are reasonable.
3.9 Publisher agrees to serve a minimum of 97% UK-targeted impressions.
3.10 Publisher agrees to deliver impressions on smooth basis throughout the month, and shall report any fluctuations in delivery or more than 5% from the projected daily delivery in advance to AOL.
4.1 Payment to the Publisher shall be based on either (i) the CPM, CPC, CPA or Revenue Share terms set forth on the attached Insertion Order, or (ii) the payment terms for Creatives selected from Currently Available Creatives, as set forth below and as applicable. Publishers will be paid at the account level-a Publisher has more than one account, each account shall be evaluated independently. For the purposes of this Agreement "Net Revenue" means, with respect to any particular period of time, the amount invoiced by AOL to advertisers with respect to Creatives on the Publisher Website, less the following deductions: (i) transaction fees, (ii) third party campaign referral fees and commissions, (iii) applicable ad serving and technology fees paid to third parties, (iv) fees paid by advertisers for training and implementation services, and (v) Invalid Clicks.
4.2 To ensure timely payment, Publisher must notify AOL at email@example.com of any changes to its Network account information, including change of address, phone or email address.
4.3 In no event will payments be made on accounts that have not provided proper tax identification information. No cheques will be issued for any amount less than £50 G.B.P. All un-issued earnings will rollover to the next pay period.
4.4 AOL reserves the right not to pay any Publisher who breaches this Agreement. AOL will be responsible for determining, at its sole and absolute discretion which acts and omissions violate this Agreement, and which acts include activity that is deceptive or fraudulent in nature. Examples of such acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs. AOL assumes no responsibility for paying income taxes on behalf of Publishers. By participating in the service, Publishers assume complete and sole responsibility for any taxes owed as a consequence of participation in the service.
4.5 For Publishers participating in AOL's self-billing scheme:
(i) AOL operates a self-billing arrangement in accordance with VAT Regulations 1995/2518, regulation 13;
(ii) Publisher agrees to participate in AOL's self-billing arrangement (unless stated to the contrary on the IO) and that:
(a) excepting payments for Creatives selected from Currently Available Creatives (for which see Clause 4.7), payments due to Publisher under this Agreement shall be issued on or about the 45th day after the end of the month in which revenue was earned by Publisher,
(b) Publisher shall provide details of its bank (for transfers) and its VAT number promptly after entry into this Agreement and promptly after any subsequent change to its VAT registration and/or its business which may affect its VAT status;
(c) Publisher shall not issue tax invoices in respect of supplies covered by this Agreement;
(d) Publisher will account for the output tax due on supplies covered by this Agreement. AOL will supply Publisher with invoices for any taxable supplies on or about the last day of every month;
(e) Publisher may withdraw from AOL's self-billing under this Agreement by providing AOL with not less than 30 days' notice in writing of its intention to do so.
4.6 For Publishers not participating in AOL's self-billing scheme: (i) on or about the 15th day of each month, AOL will notify Publisher of amounts due to Publisher for the preceding month;
(ii) to receive payment, Publisher must provide AOL with an invoice for such amount(s) prior to the end of the month in which AOL provides the foregoing notice to Publisher. All invoices must be sent to AOL's Finance Department at the following address:
Accounts Payable, AOL, Shropshire House, 11-20 Capper Street, London WC1E 6JA.
4.7 The following terms shall apply to any delivery from Publisher as a result of placing Creatives selected from Currently Available Creatives within Publisher's Media.
(a) Payment for advertisements will be made based upon the CPM, CPC, CPA or Revenue Share payout rate as set forth in the Network, depending on the Currently Available Creatives selected by Publisher.
(b) Payment shall be made by AOL on or about the 30th day after the end of the month in which revenue was earned by Publisher. Subject to the terms for Web Site Creative payout rates below, payout rates on Creatives selected by Publisher from the Currently Available Creatives shall be honored from the time such Creatives are selected by Publisher provided the particular Creatives selected by Publisher have Units remaining for delivery.
(c) IT IS THE PUBLISHER'S SOLE RESPONSIBILITY TO CHANGE CREATIVES IN HIS OR HER MEDIA WHEN A CREATIVE IS NO LONGER ACTIVE IN THE NETWORK (i.e., THE CREATIVE HAS NO UNITS REMAINING FOR DELIVERY). AOL ASSUMES NO RESPONSIBILITY FOR NOTIFYING A PUBLISHER WHEN A CREATIVE NO LONGER HAS UNITS AVAILABLE FOR DELIVERY.
(d) AOL MAY INCREASE PAYOUT RATES ON ANY CREATIVES WITH OR WITHOUT NOTICE TO PUBLISHER. NOTWITHSTANDING THE FOREGOING, AOL RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO CHANGE THE PAYOUT RATES ON ANY CREATIVE SELECTED BY PUBLISHER WHICH IS DELIVERED ON PUBLISHER'S WEB SITE(S) UPON TWENTY-FOUR (24) HOURS WRITTEN NOTICE TO PUBLISHER. PUBLISHER AGREES THAT SUCH NOTICE MAY BE GIVEN BY EMAIL TO THE EMAIL ADDRESS PROVIDED BY PUBLISHER ON AGREEING TO THESE TERMS AND SUCH NOTICE SHALL BE DEEMED EFFECTIVE 24 HOURS FROM THE TIME THE EMAIL IS SENT BY AOL ("NOTICE PERIOD"). PUBLISHER UNDERSTANDS AND AGREES THAT ANY SUCH CHANGE TO PAYOUT RATES SHALL BE EFFECTIVE, AND SHALL BE APPLIED TO ANY UNITS DELIVERED BY PUBLISHER, AFTER EXPIRATION OF THE NOTICE PERIOD. IT IS PUBLISHER'S SOLE RESPONSIBILITY TO CHECK THE EMAIL ADDRESS PROVIDED TO AOL FOR ANY PAYOUT RATE CHANGE NOTICES AND TO REMOVE A CREATIVE FROM PUBLISHER'S WEB SITE(S) PRIOR TO EXPIRATION OF A NOTICE PERIOD, IF PUBLISHER DOES NOT WANT TO BE AFFECTED BY A PAYOUT RATE CHANGE.
4.8 AOL will pay Publisher pro rata the agreed revenue share for all cookieless impressions and impressions served at a higher frequency than the agreed cap.
5.1 AOL shall have the sole responsibility in its absolute and sole discretion for calculation of statistics, including, but not limited to, Impressions, Unique Clicks, Actions and revenue generated on Publisher's Media, as applicable. GMT shall be the time zone for traffic and tracking purposes. Statistics shall be available to Publisher online at https://reports.advertising.com.
5.2 Publisher understands that AOL's online statistics may not be 100% accurate and that AOL may make adjustments to Publisher's online statistics at the end of each calendar month to account for, among other things, specific contractual provisions (e.g., bonuses) and statistical errors.
6. Use of Data.
6.1 Publisher understands that AOL collects non-personally identifiable data in connection with serving ads at Publisher's site(s).
6.2 AOL has the right to use and disclose such data for any purpose which is not inconsistent with AOL's Privacy Statement, which can be found at http://privacy.aol.co.uk/.
7. Term; Termination.
7.1 This Agreement, as and if amended, shall apply to Publisher for as long as Publisher is a member of the Network.
7.2 Either party may terminate this Agreement at anytime, for any reason whatsoever, upon written notice to the other party.
7.3 Notice may be provided via e-mail or any other written means and will be effective immediately.
7.4 Upon receipt of such termination notice, Publisher must immediately remove Creatives from its Media and cease delivery of any and all Creatives.
7.5 In the case of termination, provided that Publisher has an outstanding account balance equal to or greater than £50.00 G.B.P., AOL will pay Publisher all legitimate moneys due during the next billing cycle as set forth in Section 4.
8. Limitation of Liability.
8.1 EXCEPT AS PROVIDED HEREIN WITH RESPECT TO INDEMNIFICATION, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL AOL'S LIABILITY FOR ANY REASON WHATSOEVER EXCEED THE FEES PAID TO PUBLISHER BY AOL UNDER THIS AGREEMENT. EACH PARTY AGREES AND DOES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST THE OTHER PARTY FOR ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST AOL MORE THAN ONE YEAR AFTER THE DATE OF TERMINATION OF SERVICE UNDER THIS AGREEMENT.
9.1 Publisher is solely responsible for any and all legal liability arising out of or relating to (i) the content and other material set forth on Publisher's Media (other than through a Creative supplied by AOL, unless such Creatives were modified by Publisher without the express written consent of AOL); and (ii) any content or material to which visitors can link through the Publisher's Media (other than through a Creative supplied by AOL, unless such Creatives were modified by Publisher without the express written consent of AOL).
9.2 Publisher hereby agrees to indemnify, defend and hold harmless AOL and its officers, directors, agents, affiliates and employees from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings:
(a) for libel, defamation, violation of right of privacy or publicity, breach of contract, copyright infringement, trademark infringement or other infringement of any third party right, fraud, false advertising, misrepresentation, product liability or violation of any law, statute, ordinance, rule or regulation throughout the world in connection with Publisher's Media (except for Creatives supplied by AOL, unless such Creatives were modified by Publisher without the express written consent of AOL);
(b) arising out of any material breach by Publisher of any obligation, representation or warranty under this or any other agreement with AOL; or
(c) relating to a contaminated file, virus, worm, or Trojan horse originating from Publisher's Media (other than through a Creative supplied by AOL, unless such Creative was modified by Publisher without the express written consent of AOL).
9.3 AOL hereby agrees to indemnify, defend and hold harmless Publisher and its officers, directors, agents, affiliates and employees from and against all third party claims, actions, liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings arising out of a material breach by AOL of any obligation, representation or warranty under this Agreement.
9.4 Any claim for indemnification hereunder shall be subject to the following provisions: (a) the indemnifying party shall be given written notice of the claim within 15 days of receipt of the demand by the indemnified party; (b) the indemnifying party shall have the right to control the defense and all negotiations relative to the settlement of any such claim; and (c) the indemnified party shall reasonably cooperate with the indemnifying party and its counsel.
10.1 Publisher acknowledges that during the performance of its obligations under this Agreement, AOL may be required to disclose to Publisher certain information, which AOL regards as proprietary or confidential.
10.2 As used in this Agreement, the term "Confidential Information" shall refer to: (i) AOL's trade secrets, business plans, strategies, methods and/or practices; (ii) computer systems architecture and network configurations (iii) any and all information which is governed by any now-existing or future non-disclosure agreement between the parties hereto, (iv) any and all email addresses on AOL's advertising clients' "Do Not Send" list(s) provided for purposes of suppressing against Publisher's Email List(s); (vi) any other information relating to AOL that is not generally known to the public, including information about AOL's personnel, products, customers, financial information, marketing and pricing strategies, services or future business plans; and (vii) any and all analyses, compilations, studies, notes or other materials prepared which contain or are based on Confidential Information received from AOL.
10.2 Publisher agrees that it will not disclose any Confidential Information to any third-party, and that it will not use Confidential Information for any purpose not permitted under this Agreement.
10.3 The foregoing obligations shall not apply to the extent Confidential Information: (a) must be disclosed by Publisher to comply with any requirement of law or order of a court or administrative body (provided that Publisher agrees to notify AOL of the issuance of such order and cooperate in its efforts to convince the court or administrative body to restrict disclosure); or (b) is known to or in the possession of Publisher prior to the disclosure of such Confidential Information to Publisher hereunder, as evidenced by the Publisher's written records; or (c) is known or generally available to the public through no act or omission of Publisher or its officers, directors, employees, agents, consultants, attorneys or independent contractors ("Representatives") in breach of this Agreement; or (d) is made available free of any legal restriction to Publisher by a third party. Publisher shall promptly reimburse, indemnify and hold harmless AOL and its Representatives and other persons acting on its behalf, from and against any damage, loss or expense incurred by AOL as a result of the breach of the confidentiality provisions in this Section 10 by Publisher or its Representatives.
10.4 This Section 10 shall survive termination of this Agreement.
11. Marks Usage.
Publisher hereby authorises AOL to disclose its membership in the AOL Network and grants AOL a non-exclusive, worldwide, royalty-free right and licence to use, reproduce and display: (i) Publisher's Marks in connection with AOL's sales materials and presentations and as otherwise needed to perform its obligations under this Agreement; and (ii) Publisher's Marks and statistics relating to the performance of a particular advertiser or agency's Creative on the Publisher Website, to such advertiser or agency. In addition, Publisher agrees that AOL may sublicense the foregoing rights to third party partners procuring Creatives on its behalf. Publisher may not disclose its membership in the AOL Network or use AOL's Marks without prior written consent of AOL.
12.1 Publisher recognizes that AOL has proprietary relationships with the third-party advertisers which provide Creatives via the Network and Publisher agrees not to intentionally solicit, induce, recruit, encourage, directly or indirectly, any advertiser that is known to Publisher to be an advertising client and/or customer of AOL (e.g., an advertiser which provides Creatives via the Network), for purposes of offering products or services that are competitive with AOL (including the provision of advertising inventory) nor contact such advertisers for any purpose, during the term of Publisher's membership in the Network and for the 90-day period following termination of Publisher's membership in the Network, provided however, that the foregoing restriction shall not apply to advertisers with whom Publisher already has a relationship prior to the placement of advertising on Publisher's Media on behalf of such advertisers by AOL, as explicitly proven by documented evidence of such prior relationship provided by Publisher to AOL immediately upon AOL's written request.
This Agreement, as and if amended, shall constitute the entire understanding between the parties regarding Publisher's participation in the Network, and shall supercede all previous communications, representations or agreements, whether written or oral between the parties.
14. Representations and Warranties.
14.1 Publisher represents and warrants that (i) all content, products, and services on its Media are legal to distribute, that it owns or has the legal right to use any and all copyrighted material and (ii) it will conduct its business and fulfill its obligations under this Agreement in compliance with all applicable laws, rules and regulations.
14.2 AOL represents and warrants that it (i) has all necessary licenses and clearances to use the content contained in the Creatives and (ii) will comply with at all times, all applicable laws, rules and regulations relevant to the performance of its obligations under this Agreement.
AOL reserves the right to withhold payment and take appropriate legal action to recover damages against any Publisher that breaches the terms of or breaches the representations and warranties set forth in this Agreement, or commits fraud against AOL.
AOL reserves the right to change any of the terms and conditions of this Agreement at any time. Publishers are responsible for complying with any changes to this Agreement within 10 business days from the date of change. AOL will post notice that changes have been made to this Agreement at: http://advertising.aol.co.uk/terms
17.1 NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTIES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN.
17.2 ALL ORDERS ARE CONTINGENT UPON AOL'S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS AND UPON DELAYS CAUSED BY ACCIDENTS, WAR, ACT OF GOD, EMBARGOES, OR ANY OTHER CIRCUMSTANCES BEYOND ITS CONTROL (a case of "Force Majeure", as detailed in Section 21 below).
17.3 AOL WILL MAKE REASONABLE EFFORTS TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.
18. Governing Law.
The relationship between AOL and Publisher will be governed by, and construed in accordance with, the laws of England and Wales, without giving effect to principles of conflicts law. Each party hereby irrevocably consents to the exclusive jurisdiction of the courts of England and Wales in connection with any action arising between the parties.
19. Severability and Waiver.
If any provision of this agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of this agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by AOL of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
Publisher shall support AOL's commitment to protect the privacy of Internet users; such commitment is set forth in AOL's Privacy Statement (http://privacy.aol.co.uk) which is hereby incorporated into these terms and conditions. Publisher represents and warrants that in accordance with the Privacy and Electronic Communication (EC Directive) (Amendment) Regulations 2011, as amended from time to time, (the "PEC Regs") it has taken all steps necessary to:
c) collect all such consents that may be required for any AOL Cookies and provide evidence of such consent to AOL upon request.
Publisher may provide information on cookies by linking to www.allaboutcookies.org.
21. Force Majeure.
Neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. To the extent that a force majeure has continued for five (5) business days, either party may terminate the Agreement without penalty.
"Action" – means as set out in Network's database of Currently Available Creatives.
"AOL" - means AOL (UK) Limited, a company registered in England and Wales.
"CPA" - means a campaign for which Publisher shall be paid on a Cost Per Action basis.
"CPC" - means a campaign for which Publisher shall be paid on a Cost Per Unique Click basis.
"CPM"- means a campaign for which Publisher shall be paid on a Cost Per Thousand Impressions basis.
"Creative" - means any type of advertising creative served or otherwise provided by AOL within the Network, including, but not limited to, buttons, banners, Video Creatives, text-links, pop-ups, and pop-unders.
"Currently Available Creatives" - means Creatives available within the Network from which Publisher may select particular Creatives for placement on Publisher's Media.
"Default click" - means any click on a Creative that causes the web surfer to reach a destination other than the intended destination (an incorrect redirect), which may be caused by a server malfunction on the Publisher's Media, or because of alterations made by Publisher or erroneous coding placed on the Publisher's Media.
"Email Lists" - means lists of email addresses of persons who have provided Publisher with their prior consent to receive emails containing Creatives via electronic mail over the Internet.
"Impressions" - means the number of times a Creative is served to, and received by, a unique visitor on Publisher's Media as measured by AOL. In no event may more than 5% of unique visitors for any payout calculation come from one IP Address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation. Notwithstanding the foregoing, a Video Creative, and a Video Creative along with any companion banner that may be served with it, shall count as a single impression as measured by AOL; i.e., if a user receives a video creative it shall count as one impression, if a user receives a video creative along with a
companion banner it shall count as one impression.
"Landing Page" - means the web page on Publisher's Web Site where a Creative will be located
"Marks" – means a party's trade mark, service mark or brand name, or any derivative of any such trade mark, service mark or brand name.
"Media" - means Web Sites and Email Lists.
"Network" - means AOL's centrally managed group of third party Web Sites and Email Lists through which AOL can distribute Creatives.
"Publisher" - means the third party Media owner or manager that wishes to join the Network.
"Revenue Share" - means a campaign for which Publisher shall be paid on a fixed revenue share basis, based on the revenue generated by Publisher as a result of delivering Creatives on Publisher's Media.
"Run of Network" - means campaigns for which Publisher elects to place AOL's Run of Network code on Publisher's Web Site(s) for purposes of automatically rotating multiple Creatives available in the Network on Publisher's Web Site.
"Unique Click" -means the number of times, as recorded by AOL's server, a person viewing Publisher's Media, as identified by cookie or IP address, clicks on a Creative, provided however, that a click on a specific Creative by a particular person shall only be counted as a Unique Click once every 1-hour period.
"Units" - means the advertising units (i.e., Impressions, Unique Clicks or Actions) available for delivery by Publisher on particular Creatives within the Currently Available Creatives.
"Video Creative" - means a Pre Roll broadband video advertising unit as more fully described in the IAB Broadband Ad Creative Guidelines located at http://www.iab.net/standards/broadband/index.asp.
"Web Site" - means an HTML document containing a set of information available via the Internet.
Publisher agrees to and accepts AOL's standard terms and conditions, Schedule A and additional terms attached hereto, which are specifically incorporated by reference herein, such acceptance is conclusively evidenced by Publisher's signature of this agreement.
ADDITIONAL TERMS WHICH APPLY TO WEB SITES
The following terms supplement this Agreement and apply only to Creatives delivered by Publisher on Web Sites ("Web Delivery Supplemental Terms").
1. Approval Requirements:
1.1 AOL reserves the right to withhold approval of Web Sites to participate in the Network for any or no reason.
1.2 Any Publisher that materially changes their Web Site content to attract a different target audience after approval into the Network MUST notify AOL of the changes in writing IMMEDIATELY.
1.3 Notices should be sent to Publisher's Account Manager or to publisher@AOL.com
2. Representations and Warranties:
2.1 Publisher represents and warrants that it shall NOT:
(a) Intentionally place Creatives on blank web pages or on web pages with no content; stack Creatives (e.g. place on top of one another so that more than 2 ads are next to each other); or place Creatives on non-approved Web Sites or web pages, or in such a fashion that may be deceptive to the visitor. However, Publisher may provide related links and recommendations regarding an advertiser if such actions reflect sound business practices.
(b) Place advertisements on any Web Site (i.e, a specific URL) other than the Web Site for which the advertisement was accepted, or place advertisements intended for Web Sites on or within any other Media other than Web Sites.
(c) Unless specifically approved by AOL in writing, resell any Creatives to other Web Sites, Publishers, or any other third parties.
(d) Serve Creatives from any location other than the AOL server. Stored images that are loaded from a different location will not count towards any statistic or payment.
1. The Publisher either owns or reasonably believes that it is entitled to use the content displayed on the Site(s);
2. The Publisher does not knowingly include in the Site(s) any "virus" or other destructive programming or device that could impair or injure any data, computer system or software;
3. The content of the Site(s) does not to the Publisher's knowledge violate any applicable laws or regulations, including without limitation those relating to advertising, gambling, competitions and consumer protection;
4. The content of the Site(s) does not to the Publisher's knowledge violate the rights of any person or entity, including without limitation any intellectual property or other proprietary right, any right of privacy, or by being defamatory;
5. The Publisher does not knowingly promote or facilitate on the Site(s) any activities that are illegal under applicable law or that infringe the rights of any person or entity, including without limitation the pirating of copyright works, or hacking or other unauthorised access to or modification of devices.
6. The Publisher shall operate a "notice and takedown" policy that complies with applicable law (currently, for Publishers situated in the UK, the Electronic Commerce (EC Directive) Regulations 2002) in respect of unlawful activity or information on the Site of which the Publisher gains knowledge or awareness.
7. The Publisher shall use all reasonable endeavours to ensure that Advertising on the Site(s) does not appear on any Prohibited Content and, on notice, will use best endeavours to take down advertising, as soon as reasonably practicable, that is appearing on Prohibited Content.
8. The Publisher shall use all reasonable endeavours to ensure that Inventory booked on the Site(s) is not re-sold or re-brokered.