AOL Advertising Standard Terms and Conditions (Cont'd)
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27. Gambling Services
Advertiser warrants and undertakes that as of the Start Date and throughout the Term of this Agreement:
27.1 Advertiser's Affiliate registered business providing the Advertiser Site and the Products is in the EEA, Gibraltar, Alderney, the Isle of Man, Antigua, Barbuda or other country that has been white-listed by the UK Gambling Commission;
27.2 Advertiser and/or Advertiser Affiliates have all necessary licences necessary to provide the Advertiser Site and the Products from the UK Gambling Commission, or similar as applicable and upon request by AOL shall submit copies of such to AOL at any time;
27.3 Advertiser and/or Advertiser Affiliates possess all rights, licenses, consents, and any other permissions necessary in the Campaigns and to make the Campaigns available in accordance with this Agreement;
27.4 Advertiser Site has industry standard or better age verification tools in place; and
27.5 Advertiser and/or Advertiser Affiliates through the Advertiser Site does not and will not accept money/payment from those with payment details issued in the United States of America, Northern Ireland, or any other prohibited jurisdiction.
28. Web Hosting
28.1 In the event Advertiser uses AOL's web hosting services, AOL shall make commercially reasonable endeavours to keep any Network servers on which Advertiser's content is hosted, operating in good working order during the Term of the Agreement, provided that Advertiser understands that AOL's network servers may occasionally be disconnected due to preventative or emergency maintenance, upgrades and other necessary interruptions.
28.2 AOL will make commercially reasonable efforts to schedule any network downtime during periods of low Internet usage.
28.3 Unless the Parties otherwise agree in writing, any data collected by AOL on behalf of Advertiser through use of AOL's hosting service, shall be collected using encryption or other secure technology.
28.4 All data collected by AOL on behalf of Advertiser shall be maintained on AOL's secure servers and AOL shall make commercially reasonable efforts to keep all information on such servers backed-up. Nevertheless, Advertiser acknowledges that, regardless of security protocols used, any live connection to the internet is not 100% secure.
29. Billing and Counting
29.1 For Campaigns that the Parties agree shall be charged in accordance with Advertiser's Statistics:
29.1.1 The Advertiser must supply AOL with updated Statistics no less than every three days from the Start Date, and/or provide means for AOL to access the Advertiser's third party ad server Unit count remotely.
29.1.2 The Advertiser shall provide the name of and the logins to the third party ad server to verify such Statistics.
29.1.3 In the event that the Advertiser does not comply with this Clause 29.1, AOL may at its sole discretion charge for a reasonable estimation of Units delivered in the relevant month to be billed.
29.2 For Campaigns charged based on AOL's Statistics:
29.2.1 The Advertiser acknowledges that it will be charged based solely on AOL's Statistics and that it shall be responsible for monitoring Unit delivery.
29.2.2 In the event a Unit count discrepancy exists between AOL's Statistics and Advertiser or Advertiser's third party ad server's Statistics (a "Discrepancy") and that discrepancy is less than 10% of the Units agreed in the IO, then AOL's Statistics will prevail.
29.2.3 In the event of any Discrepancy greater than 10%, AOL and Advertiser will investigate and discuss the cause of Discrepancy and use their best endeavours to agree the number of Units to be charged for the Campaign.
29.3 For all CPA Campaigns, AOL reserves the right to charge for Conversions (i) tracked after the End Date of the Campaign (or after the date of any Suspension or cancellation requested by the Advertiser in accordance with this Agreement) falling within the View-through Conversions and Click-through Conversion periods set out in the IO, and (ii) resulting from Impressions shown before the End Date of a Campaign. For the avoidance of doubt, this Clause 29.3 shall apply to all View-through and Click-through Conversions.
29.4 For all Campaigns running with Open Budgets the Advertiser acknowledges it shall be liable to pay the cost per Unit specified on the IO for all Units delivered.
29.5 The Fees payable by Advertiser for CPA or Revenue Share Campaigns shall be based on the actual Actions generated for Advertiser (and not, for the avoidance of doubt, any projected Actions set out by either Party).
29.6 In the event that Advertiser does not comply with this Clause 29, AOL may at its sole discretion charge for a reasonable estimation of Units delivered in the relevant month to be billed.
30. Third Party Ad Servers
30.1 Subject to Clause 30.2 below:
30.1.1 AOL may, at its sole discretion, permit the Advertiser to serve the Campaigns through a third party ad serving system at Advertiser's cost, provided that such third party first agrees to be bound by these Standard Terms;
30.1.2 Advertiser may not substitute the third party ad server without AOL's consent.
30.2 For the avoidance of doubt, any reports containing Campaign Statistics delivered by a third party ad server shall not affect the rights or obligations of the Parties under this Agreement.
30.3 If the Parties agree that Advertiser shall use a third party ad server to track delivery, the identity of and contact information for such third party shall be set out in the IO (or, at AOL's election, in email correspondence between the Parties prior to signing the IO).
31. Back End Performance Target
AOL neither accepts liability nor offers any guarantee that a Campaign will meet the Advertiser's Back End Performance Target and, for the avoidance of doubt, shall not be liable to pay any compensation nor reduce the amount payable/to be invoiced.
32. Impression weighting
Advertiser acknowledges that AOL does not guarantee delivery of a certain proportion of Units against any one or any subset of advertising media or to deliver a certain proportion of Units against any one or subset group of Targeted websites/placements.
33. Campaign Frequency Caps
33.1 Where Advertiser does not specify a User Frequency of Exposure Constraint in an IO, AOL reserves the right to set and change any User Frequency of Exposure Constraints at its sole discretion.
33.2 Where an Advertiser does specify the User Frequency of Exposure Constraint in an IO, the Advertiser acknowledges that AOL's Statistics will apply and shall not guarantee any compensation for any Discrepancy.
Clauses 13, 17, 18 and 19 of these Standard Terms shall survive the expiry or termination of this Agreement. Any termination of this Agreement shall be without prejudice to any rights and payment obligations accrued in favour of either Party prior to or upon the date of such termination.
36. Relationship Between the Parties
36.1 Neither Party shall be liable for, or be considered in breach of this Agreement on account of, any delay or failure to perform as required by this Agreement (excluding payment obligations) as a result of any causes or conditions which are beyond such Party's reasonable control, including but not limited to such as acts of God, acts of government, strikes or war, and which such Party is unable to overcome by the exercise of reasonable diligence.
36.2 Advertiser shall not assign this Agreement or any right, interest or obligation under it without AOL's prior written consent. AOL may assign this Agreement or any of its rights, interests or obligations under it to any AOL Affiliate without restriction or to any successor of AOL by way of merger, consolidation or the acquisition of all or substantially all of the business and assets of AOL relating to this Agreement.
36.3 AOL and Advertiser are independent contractors and not the agent, representative or partner of the other Party.
36.4 Failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver of such Party's right to assert or rely upon any such provision or right in that or any other instance.
36.5 This Agreement comprises the entire agreement between Advertiser and AOL, and supersedes all prior agreements, statements, and representations whether negligent or otherwise (other than fraudulent misrepresentations) by either Party in relation to its subject matter.
36.6 No change, amendment or modification to any provision of this Agreement shall be valid unless made in writing and signed by an authorised representative of each Party, unless:
(a) otherwise stated in this Agreement or
(b) the changes relate to Term extensions or minor technical or creative issues which Advertiser may request and which shall become binding on the parties upon email confirmation from AOL.
36.7 Any notice or other communication required to be given or made under this Agreement shall be in writing and addressed to the sending Party's principal contact at the receiving Party at the address for the receiving Party in the IO (or such other contact and address that either may notify to the other in compliance with this Clause).
36.8 Notices and communications shall be considered given or made: where sent by hand or courier, upon receipt; where sent by first class pre-paid post, on the second working day following the date of posting; or where given by fax (subject to retention by the sending Party of confirmation of successful transmission), four hours after the time of successful transmission.
36.9 This Agreement shall be interpreted, construed and enforced in all respects in accordance with English law and the Parties hereby submit to the exclusive jurisdiction of the English Courts.
36.10 If any provision of this Agreement is or becomes invalid or illegal in any respect, that provision shall be deemed severed from this Agreement but the validity, legality and enforceability of the remaining provisions shall not be affected.
36.11 The Clause headings in this Agreement are included for convenience only and shall not affect its construction.
36.12 A person (natural or legal) who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but that does not affect any right or remedy of a third party which exists or is available apart from that Act.
36.13 In the event of any inconsistency between the IO and the Standard Terms, the IO shall prevail.
"24/7" means twenty four hours per day and seven days per week, subject to AOL's maintenance requirements which AOL will make commercially reasonable efforts to schedule during periods of low Internet usage.
"Action" means a specific activity undertaken by a User in connection with or in response to the Campaign, for which the Advertiser/Agency agrees to pay AOL an agreed Fee, eg a purchase or a registration, which activity will be always as described out in the IO.
"Actuals" means the billing method whereby Fees are accrued and billed based on volumes actually delivered (in accordance with Clause 29, Billing and Counting) (where 'volume' refers to the volume of the agreed Metric delivered).
"Advertiser" means the advertiser named in the IO.
"Advertiser's Site" means a website or webpage under Advertiser's control.
"Advertisement" means any and all advertising materials provided by Advertiser to AOL.
"Agency" means any media planner, media buyer or any other representative acting named on the IO acting on behalf of the named Advertiser.
"Agreed Quantity" means, in respect of a given Campaign, the Unit quantity indicated for delivery on the corresponding IO.
"Advertiser Affiliate" means a member of Advertiser's corporate group and any entity that controls, is controlled by or is under common control with Advertiser.
"AOL Affiliate" means a member of AOL's corporate group and any entity that controls, is controlled by or is under common control with AOL (UK) Limited, AOL Inc or AOL Advertising Inc.
"AOL Advertising Website" means the website available at http://www.advertising.aol.co.uk/ or such other URL as AOL may notify to Advertiser from time to time.
"AOL Service" means the AOL service identified in the IO and/or Carriage Plan as a location where Campaigns shall be displayed, specifically excluding any other version, product, site or service which is not standard by virtue of its branding, distribution, functionality, customisation, content or services.
"AOL User" means any user of the Premium Content Network.
"Backend Performance Target" means a performance objective or goal in relation to which an Advertiser may collect data to evaluate the overall performance of an online Campaign that is in addition to the Metric set out in the IO. For example, this may be an effective CPA, Conversion rate or other described feature.
"Booked Budget" means the fee agreed by the parties for the Campaign specified in the IO.
"Business Days" means 9.00 – 17.00, Monday to Friday, excluding all bank holidays and public holidays recognised in England.
"Campaign(s)" means all links, Advertisements and other Campaign content and services to be displayed for the Advertiser on inventory on the Premium Content or Performance Network in accordance with this Agreement and set out in the IO, including without limitation, any trade marks and logos therein and any Microsites.
"Campaign Start Date" means the date specified in the IO for the commencement of a Campaign;
"Campaign Statistics" means the record of delivery numbers for the Campaign including Impressions, Click-throughs and Actions or as otherwise specified on the IO.
"Campaign End Date" means the date specified in the IO for the conclusion of a Campaign.
"Carriage Plan" means the planned inventory booking set out in, or appended to, the IO.
"Click" means recordable user interaction with an Advertisement.
"Click-through to Conversion" means when a user Clicks on an Advertisement and makes the desired Advertiser Conversion or purchase. The agreed time from Click-through to Conversion in which conversions will be accepted by the Advertiser should are as stated in the IO.
"Conversions" means when a user has a particular Cookie dropped on their machine and this is linked back to an advertisement that has been displayed by AOL. This may be an Impression or Click depending on the tracking method/Metric agreed by the parties.
"Cookie" means a file of letters and numbers stored on a user's computer by their web browser, allowing the cookie-issuer to recognise a user and their preferences.
"CPA" means the Metric which records the 'Click per Action' generated by or pursuant to a Campaign.
"CPC" means the Metric which attributes a cost for each 'Click' generated by or pursuant to a Campaign.
"CPM" means (i) in the context of Video Advertisements, the Metric that records the number of times a Video Advertisement is Streamed and charges the Advertiser on a per-thousand Streams basis at the agreed rate set out in the IO; and (ii) in the context of non-Video Advertisements, the Metric that records the number of times an Advertisement is displayed (also referred to as Impressions) and charges the Advertiser on a per-thousand Impression basis at the agreed rate set out in the IO.
"CPUL" means cost per unique landing.
"Creative" has the meaning set out in Clause 24.1 of these Standard Terms.
"Creative Due Date" has the meaning set out in Clause 24.1 of these Standard Terms.
"Creative Services" means creative work including but not limited to banners, Microsites, emails, produced by AOL.
"Custom" refers to any billing method which is neither Actuals, Scheduled, nor Pre-Paid, as may be agreed between AOL and Advertiser/Agency.
"Discrepancy" means any variation between statistical data provided by or on behalf of AOL and statistical data provided by or on behalf of Advertiser.
"Fixed Budget" means the calculation of fees due to AOL in respect of a Campaign on a fixed basis according to the Metric and the applicable Campaign Statistics as specified in the IO.
"Fees" means the amount payable by the Advertiser to AOL under this Agreement, calculated according to the Metric specified on the IO and relevant Campaign Statistics.
"Frequency Cap" means limiting the number of times an Advertisement is delivered to a User within a specific time frame as stated in the IO.
"Gambling Services" the provision of Gambling as defined by s.3 of the Gambling Act 2005.
"Gross Cost" means the sum the Advertiser must pay for the Campaign or other activity specified in an IO to AOL, inclusive of any Agency commission.
"IAB" means the Internet Advertising Board.
"Impression(s)" means the exposure of a User to the Campaign on the applicable Network as may be reasonably determined and measured by AOL in accordance with its standard methodologies and protocols (and, in particular, excluding any exposure generated by automatic refresh). Each exposure to a Campaign on a single page or screen where multiple Campaigns are displayed shall count as separate Impressions when such page or screen is accessed.
"Impressions to Conversions"/"View-through Conversions" means when a User is exposed to an Advertisement, does not Click-through, but instead goes directly to the Advertiser's URL and makes the desired Advertiser Conversion or purchase, within the agreed View-through time period from exposure to Conversion in which Conversions will be accepted by the Advertiser as stated in the IO.
"In-Banner Ad" refers to a Video Advertisement which plays within a standalone placement, where the advertisement will run as a standalone feature (as opposed to In-Stream Ads).
"Insertion Order"/"IO" means the order form setting out additional terms relating to the Campaign, signed by the Advertiser and confirmed by AOL via a confirmation email.
"Landing Page" means such website URL(s) to which the Campaign links at Advertiser's direction (including, where selected, any additional sites which Advertiser selects to be directly linked to from the Campaign, such as – but not limited to – Facebook and/or Twitter).
"Management Fee" means any AOL Campaign fee for management services specified in the IO.
"Leadback Targeting" means the retargeting by AOL of a pre-established audience generated by the Advertiser's website or Campaign, whether on the Performance Network or the Premium Content Network.
"Make Good" means the provision of certain Impressions by AOL, as applicable pursuant to the Agreement.
"Metric" means the basis for measuring and/or charging for a Campaign as set out in the IO, including without limitation CPM, CPC, CPA.
"Microsite" means a website created by AOL and hosted by either the Advertiser or AOL for the purpose of a Campaign.
"Moderated" means that the website has a stated moderation policy regarding the content on its site, and subjects this content to editorial control.
"Monitored" means sites on which content is managed and which record how end users interact with a website to ensure that the site is available, fully functional and downtime is minimized.
"Net Cost" means the sum the Advertiser agrees to pay AOL for the Campaign as set out in the IO.
"Network" means either the Performance Network or the Premium Content Network or both as applicable.
"Non-Actuals" refers to all billing methods other than Actuals (Scheduled, Custom and/or Pre-Paid).
"Open Budget" means calculation for payment of a Campaign on a cost per Unit basis according to the Metric and the applicable Campaign Statistics as specified in the IO, and without any upper-limit on Fees.
"Parties" means the parties to the Agreement as named in the IO and "Party" shall be construed accordingly.
"Payment Schedule" means the payment schedule set out in the IO.
"Payment Due Date" means the date by which any payment shall be received by AOL as stated in the Payment Schedule.
"Performance Network" means AOL's network of third party media providers' services on which Advertisements shall be displayed, including without limitation the UK Video Network. The Performance Network is a blind network meaning that those websites within the Performance Network will not be named or otherwise explicitly revealed to the Advertiser. The Performance Network adheres to the DTSG Best Practice Priciples. There can be no guarantees of delivery on specific websites or specific format sizes on the Performance Network.
"Pixel" means a single line of HTML coding, which appears as an invisible 1x1 GIF, that is placed on a website to track anonymous consumer activity.
"Premium Content Network" means AOL Services, along with any other product or service owned and operated, marketed, distributed or authorised to be distributed by or through AOL or AOL's Affiliates worldwide, where an Advertiser/Agency's Campaign is displayed (as may be further specified and agreed on the IO).
"Pre-Paid" means the billing method whereby Advertiser/Agency pays the Fees in advance of delivery of the given Campaign (or that portion of the Campaign to which the payment relates).
"Products" means the products or services to be marketed, promoted, offered or sold by the Advertiser in the Campaigns as set out in the IO, and "Product" shall be construed accordingly.
"Revenue Share" means the Fees charged to the Advertiser which represent an agreed percentage of Sales Revenue generated on Advertiser's website; Or a Campaign billed on a revenue-share basis at an agreed Metric and shared percentage specified in the IO.
"Sales Revenue" means the gross value of sales of the Advertiser's products or Services.
"Scheduled" means the billing method whereby the total Fees as stated on the IO are pro-rated and accrued on a daily basis, beginning on the Start Date and ending on the End Date.
"Search Term" means a word or phrase which, when entered in a search term field in AOL's search engine, may trigger the display of a Campaign on the AOL Service on a rotational basis.
"Shop@" or "Shopping Channel" means the pages on AOL Services offering products and services for sale, which are accessible from a "shopping" button and branded "Shop@", including without limitation any replacements for or successors to those pages.
"Showing Impressions" relates to the exposure of an Advertiser's Campaign to a specific audience which is tracked as an Impression when an Advertisement is returned to a particular page/area on a website.
"Site List" means the list of websites agreed by the parties.
"Stream" means a single instance of a Video Advertisement stream being initiated, post-buffering, and received by a User on the Premium Content Network or the Performance Network (or both), as applicable i.e. when the Video Advertisement itself begins to appear on the user's browser, as determined and measured by AOL in accordance with its standard methodologies. Streams that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count as a Stream.
"Standard Creative" means Creative that is made available.
"Start Date" and "End Date" mean the first and last dates on which the Campaigns are to be displayed as specified in the IO, respectively.
"Suspend"/"Suspension" means pausing the Campaign on the terms of this Agreement provided that when the Advertiser requests for a Campaign to be Suspended, reactivation of the Campaign may only occur during the Term, for the remainder of the Term, and shall be at AOL's discretion.
"Term" means the period commencing on the earliest Start Date and expiring on the latest End Date.
"Unit" means a unit for calculation of the applicable Metric specified in the IO.
"User" means any user of the Performance Network, Premium Content Network or the AOL Services.
"User Communication" means any content appearing on the Advertiser Site(s) and/or Landing Page(s) and any e-mail or other communications directed at Users.
"User Information" means all non-personally identifiable information that identifies or relates to any User or AOL account.
"UK Video Network" means AOL's pre-roll video network to serve video advertising on websites.
"Video Advertisement" means any video advertising materials provided or produced by Advertiser/Agency, which may be either an In-Stream Ad (to which Clause 9 of these T&Cs apply) or an In-Banner Ad.
"View-through" means the measure of the number of online Conversions occurring within 30 days after a User viewed, but did not Click, Creative on one of the sites on the Premium Content Network.
"Web Beacons" means computer code used to track who is reading a Web page or e-mail, when, and from what computer.