1. General Terms
These general terms apply to any Adnuntius service purchased, licensed or subscribed to.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Ad Banner“, “Ad” or “Advertising” shall mean a promotional message (including any code embedded therein) that may consist of text, graphics, audio and/or video or any combination thereof and that is displayed on online media inventory for the purpose of publicizing an Advertiser’s products or services.
“Customer Data” means all electronic data, information or creative work submitted by Customer to the Services, whether that data, information or creative work is submitted by Customer, Users, or general Public Users of the Network.
“Network” means the network of websites or web services operated by Customer, and Customer’s Users, and used in connection with the Services, including but not limited to the Customer’s own website, or web services, and third party web sites or web services that directly or indirectly are using the Services.
“Order Form” means the ordering documents for purchases hereunder that are entered into between Customer and Adnuntius from time to time. Order Forms shall be deemed incorporated herein by reference.
“Royalty Report” means a report generated by Adnuntius from Customer’s traffic and click-through data that include total numbers for a given time period and any aggregated calculations on revenue or conversion data.
“Services” means the online, web-based applications and/or platform provided by Adnuntius via https://admin.Adnuntius.com and/or other designated websites as described in the User Guide, that are ordered by Customer under the Agreement, including any associated offline components.
“User Guide” means the online user guide for the Services, as updated from time to time.
“Users” means individuals or entities that are authorized by Customer to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Customer (or by Adnuntius at Customer’s request). Users may include but are not limited to third parties with which Customer transacts business and/or has a contractual relationship.
“Public Users” means individuals/consumers that consume and/or are customers of the Customer’s services.
“Effective Date” means the contract’s effective start date as it is specified in the Order Form. This is the date from which invoicing will commence.
“Force Majeure” means unavailability caused by circumstances beyond Adnuntius’ reasonable control, including without limitation events such as acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labor problems (other than those involving Adnuntius employees), Internet service provider failures or delays, or legal restrictions in accordance with applicable laws and government regulations.
1.2.1 Provision of Services. Adnuntius shall provide the non-exclusive, non-sub-licensable and non-transferable right to access and use the Services pursuant to this Agreement and the relevant Order Forms during the subscription term.
1.2.2 Subscriptions. Unless otherwise specified in the applicable Order Form, Services are purchased as subscriptions and the Services are limited to the specified capacity as described in the Order Form.
1.3. Customer Responsibilities
1.3.1 Customer data. Customer is responsible for (a) Customer’s and Users’ use of the Adnuntius Services, and (b) the appropriateness and legality of all Customer Data. Customer acknowledges that Adnuntius acts as a mere technological carrier and is not responsible for the content of the Customer Data or for evaluating the appropriateness of the Customer Data in relation to the environment where they are disclosed or published.
1.4. Fees and Payments
1.4.1 Fees. Customer shall pay all fees specified in all Order Forms hereunder in consideration for Adnuntius’ provision of the Services. Customer must pay to Adnuntius all fees that are owed under this Agreement even if the Customer has not received payment outstanding from the transactions utilizing the Services. Except as otherwise specified in this Agreement or in an Order Form, (i) fees are quoted and payable in Norwegian Kroner, (ii) fees are payable based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the amount of subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. If fees owed to Adnuntius are based on revenue share, Adnuntius will issue to Customer a Royalty Report on a monthly basis. Customer will have five (5) business days after receipt of the Royalty Report to dispute any amounts owed to Adnuntius. If Customer fails to dispute a Royalty Report within such time period, the Customer is deemed to have agreed to the amount owed to Adnuntius.
1.4.2. Invoicing and Payment. Unless otherwise stated in the Order Form, invoiced charges are due net 14 days from the invoice date.
1.4.3. Overdue Charges. If any charges are not received from Customer by the due date, then at Adnuntius’ discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) charge a 100 NOK fee for invoice reminders sent on the 30, 45, and 60 day anniversary of the due date, and/or (c) charge a fee of 1000 NOK for reestablishing suspended services following a 70 day reminder, and/or (c) Adnuntius may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Clause 1.4.2, and/or (d) Adnuntius may charge Customer for any legal fees and/or collection costs incurred by Adnuntius in collecting any amounts due from Customer.
1.4.4. Suspension of Services and Acceleration. If any amount owed by Customer under this or any other agreement for the Services is 30 or more days overdue , Adnuntius may, without limiting Adnuntius’ other rights and remedies under this Agreement and/or applicable laws, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Services to Customer until the fees are paid in full.
1.4.5. Taxes. Unless otherwise stated on invoices, the Adnuntius fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes“). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Adnuntius has the legal obligation to pay or collect Taxes for which Customer is responsible under this clause, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Adnuntius with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Adnuntius is solely responsible for Taxes assessable against it based on Adnuntius’ income, property, and employees.
1.5. Limitaion of Liability
1.5.1 Limitation of liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF (A) THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR (B) THE ACTUAL DIRECT DAMAGES SUSTAINED BY SUCH PARTY OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF (C) USD 250,000, (D) THE ACTUAL DIRECT DAMAGES SUSTAINED BY SUCH PARTY RELATED TO SUCH SINGLE INCIDENT, OR (E) THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER CLAUSE 1.4.
1.5.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE ABOVE DOES NOT APPLY IF THERE IS GROSS NEGLIGENCE OR INTENTIAL MIS-CONDUCT FROM EITHER PARTY.
1.6. Term and Termination
1.6.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated.
1.6.2. Term of Purchased Subscriptions. Subscriptions purchased by Customer commence on the Effective Date and continue for the subscription term specified in the applicable Order Form. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing or revenue share during any such renewal term shall be the same as that during the prior term unless Adnuntius has given Customer written notice of a pricing change at least 30 days before the end of such prior term, in which case the pricing change shall be effective upon renewal and thereafter.
1.6.3. Termination for Cause. A party may terminate parts or the entirety of this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such 30-day period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) immediately upon written notice if Adnuntius for any reason loses its rights to resell and/or deliver services from any of its technology partners.
1.6.4. Refund or Payment upon Termination. Upon any termination for cause by Customer according to Clause 1.6.3, Adnuntius shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Adnuntius, Customer shall pay any unpaid fees covering the balance of the remaining term of all Order Forms that were valid up to the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Adnuntius for the period prior to the effective date of termination.
1.6.6. Effects of termination. In the event of termination of this Agreement, Customer shall immediately cease using the Services and shall destroy or return to Adnuntius all copies in any form of Adnuntius’ Confidential Information and, upon request, will certify in writing to Adnuntius that such delivery or destruction has been fully effected.
1.6.5 Surviving Provisions. Clauses 1.4, 1.5, 1.6.4, 1.7, 1.8, and 1.9 shall survive any termination or expiration of this Agreement.
1.7. Indemnification and Liability
Subject to Sections 1.5.1 and 1.5.2 above, the Parties make the following representations, warranties and indemnities:
1.7.1 Representations, warranties and Indemnities by Adnuntius. Adnuntius warrants and represents at all times that Adnuntius (i) has the right and full power and authority to enter into this Agreement, to grant the rights herein granted and to fully perform its obligations hereunder, and (ii) that, to the best of its knowledge, the Services will not infringe the copyright held by any third party. In the event that a third party initiates any action against Adnuntius based on an infringement claim in respect of intellectual property rights of that third party, Adnuntius may, at its sole option, either (a) obtain for Customer the right to continue using the Services, (b) replace or modify the Services so that the Services no longer infringe or misappropriate the intellectual property rights of a third party; however, providing substantially the same functionality, or (c) terminate the Services. Adnuntius shall indemnify, defend and hold Customer harmless from and against any and all claims, actions, losses, damages, liabilities, reasonable costs and expenses (including reasonable outside attorneys’ fees) resulting from or arising out of or in connection with any breach of the foregoing representations and warranties. Customer shall promptly notify Adnuntius of all claims and proceedings related thereto of which Customer becomes aware.
1.7.2 Representations, warranties and Indemnities by Customer. Customer warrants and represents at all times that Customer (i) has the right and full power and authority to enter into this Agreement, to grant the rights herein granted and to fully perform its obligations hereunder, (ii) owns and/or has the right to use any and all Customer Data, and all materials contained on the Customer and/or its Affiliates websites and/or applications, including, without limitation, all copyrights, trademarks and other proprietary rights in and to such materials, (iii) has secured the requisite permission to use any person’s name, voice, likeness and performance, and any Customer Data, as embodied in such materials, (iv) has secured that the Customer Data does not contain any messages or images that are in violation of applicable laws, (v) will use the Services in accordance with the terms and conditions hereof and applicable laws and in a manner that, to the best of its knowledge, will not infringe or misappropriate the intellectual property rights held by any third party. In furtherance of the foregoing, Customer agrees to indemnify and hold Adnuntius harmless from and against any and all claims, actions, losses, damages, liability, reasonable costs and expenses (including reasonable outside attorneys’ fees) arising out of or in connection with the breach of the foregoing representations and warranties. Adnuntius shall promptly notify Customer of all claims and proceedings related thereto of which Adnuntius becomes aware.
1.7.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ADNUNTIUS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE SERVICES HEREUNDER FOR A PARTICULAR PURPOSE OR APPLICATION.
1.8 Notices, Governing Law and Jurisdiction
1.8.1. General. This Agreement, its interpretation, performance or any breach thereof, will be construed in accordance with, and all questions with respect thereto will be determined by the laws of Norway. Both parties hereby irrevocably submit any disputes under this Agreement to the non-exclusive jurisdiction of the courts located in Oslo, Norway. Each party agrees to the governing law above without regard to choice or conflicts of law rules.
1.8.2. Notices. All notices permitted or required to be given hereunder shall be addressed to Sales Operations at finance@Adnuntius.com. Notices to Customer shall be addressed to the business contact designated by Customer in the applicable Order Form.
1.8.3. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices hereunder shall be in writing and shall be deemed to have been given upon the first business day after sending by email.
1.9 General Provisions
1.9.1. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party under applicable laws.
1.9.2. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
1.9.3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this clause shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination by Customer, Adnuntius shall refund to Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Adnuntius for the period prior to the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
1.9.4. Confidentiality. Both parties agree to keep all information as specified in the Order Form confidential and not to inform any third party about its content unless required to do so by law or regulation or mutually agreed upon by the parties.
1.9.5. Entire Agreement. This Agreement, including all exhibits and addenda hereto, and all Order Forms, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions inserted by Customer in Customer’s purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
1.9.6 Marketing and PR. During the Term, Customer grants Adnuntius a limited, royalty-free, non-transferrable right to identify Publisher as a customer or user of the Services solely in connection with providing the Services hereunder, and use Customer’s name, marks and logos in marketing materials, in press releases with other customers and on Adnuntius’ website. Customer shall not use Adnuntius’ name, logos or other marks without Adnuntius’ prior written consent. Any other use of Customer’s name, logos, or other marks by Adnuntius shall be subject to Customer’s prior approval. The parties shall work together in good faith to issue a press release within sixty (60) days of the Effective Date, in a form mutually agreed by the parties announcing the business relationship between them.
2. Special Terms Applying to the Advertising Platform
These terms apply specifically to the subscription and use of the Adnuntius Advertising Platform, and act in addition to 1. General Terms. In case of inconsistencies between these special terms and the general terms, these special terms shall prevail over the general terms.
2.1. Support and Service Levels
Adnuntius shall: (i) provide to Customer basic support for the Services, and (ii) use commercially reasonable efforts to make critical support available 24 hours a day, 7 days a week , except for: (a) planned downtime (of which Adnuntius shall give at least 2 business days’ notice by email to Customer’s system administrator, and which Adnuntius shall schedule to the extent practical during the weekend hours from 9:00 p.m. Central European Time (CET) Friday to 2:00 pm CET Sunday), or (b) any unavailability caused by circumstances beyond Adnuntius’ reasonable control, including without limitation Force Majeure events.
Unless otherwise stated in the Order Form, charges are invoiced monthly in advance.
3. Special Terms Applying to the Demand-Side Platform
These terms apply specifically to the subscription and use of the Demand Side Platform (DSP), and act in addition to 1. General Terms. In case of inconsistencies between these special terms and the general terms, these special terms shall prevail over the general terms.
3.1 Use of Partners
Adnuntius uses technology partners for providing DSP functionality, and the Customer accepts that Adnuntius uses such partners to provide DSP functionality.
Unless otherwise specified in the applicable Order Form, Customer will be invoiced for programmatic spending from Adnuntius Services AS, a company fully owned by Adnuntius. Unless otherwise stated in the Order Form, charges are invoiced monthly, and are based on the spending in the previous month. If the Customer is charged any fixed fees for access to the Services, these will be invoiced from Adnuntius AS.
3.3 Support and Service Levels
Adnuntius shall provide technical support during normal working hours, Monday to Friday, 9am to 5pm CET. Furthermore, Adnuntius shall use reasonable efforts to ensure ad delivery service availability with 99% uptime, except maintenance downtime and Force Majeure events, and ad management system availability with 97% uptime, except maintenance downtime and Force Majeure events.
3.4 Customer Responsibilities
3.4.1 Solicitation and rights management. Customer is solely responsible for soliciting all Media Buyers and/or Media Sellers, trafficking of Ad Banners and handling all inquiries of any type related to Customer’s use of the Service. Customer will obtain all necessary rights, waivers and permissions from (i) Media Buyers to allow Adnuntius to store and serve their Advertising; (ii) Media Sellers to allow Adnuntius to serve Advertising onto online media inventory; and (iii) end users who view, click or convert on the Advertising, to the extent that any information is collected from or about them.
3.4.2 Limitation of usage. Customer is responsible for using the Services only for the purposes of: (i) uploading and storing Ad Banners; (ii) selecting Ad Banners and designating the criteria for the serving of those Ad Banners onto online media inventory; and (iii) receiving reports of Ad Banner impressions and other data related to Customer’s use of the Service.
3.4.3 Correct information. Customer acknowledges that Adnuntius is not liable for or in connection with transactions executed by the System as a result of errors made in entering information into the System by or for Customer, for example, incorrectly entering pricing, targeting or budgeting information.
3.4.4 Content. Customer agrees that (a) Customer will not, directly or indirectly, introduce viruses, spyware or other malicious code into the System; and (b) Customer’s use of the Service and System, will not violate the applicable laws or regulations, be deceptive, misleading, harmful, obscene, defamatory, unethical, infringing or violative of any third party right, and (c) more explicitly any content deemed pornography by Adnuntius will lead to an immediate termination of this agreement and any applicable legal recourse. In connection with 3(a) above, Customer will promptly notify Adnuntius upon becoming aware of any such incident and reasonably cooperate with Adnuntius in addressing the same. Customer will also notify Adnuntius promptly upon becoming aware of any budget or ad serving malfunctions from the system and reasonably cooperate with Adnuntius in addressing the same.
4. Special Terms Applying to the Supply-Side Platform
These terms apply specifically to the subscription and use of the Supply Side Platform (SSP), and act in addition to 1. General Terms. In case of inconsistencies between these special terms and the general terms, these special terms shall prevail over the general terms.
4.1 Use of Partners
Adnuntius uses technology partners for providing DSP functionality, and the Customer accepts that Adnuntius uses such partners to provide DSP functionality.
“Real-Time Bidding” shall mean a program which includes real-time bidding (RTB) on auction for advertising impressions. The Real-Time Bidding program allows Demand Partners to manually or programmatically bid on Customer Inventory and includes Customer Inventory accessed by end users on mobile devices, smart phones, tablets and other wireless devices. Each impression served on the Customer Inventory through Real-Time Bidding will be subject to an auction where the “bids” are derived from media buying clients, including but not limited to demand side platforms, ad exchanges, agencies, agency trading desks and ad networks (each a “Demand Partner”).
“Private Marketplace” shall mean a private marketplace utilizing RTB technology which provides for inventory ordering, impression fulfillment and deal management. The Private Marketplace program allows Customers to control, price and manage their reserved and unreserved Customer Inventory. Customer Inventory and packages may be sold by Customer either directly via a marketplace or across multiple direct third-party buying platforms to agencies, trading desks and direct advertisers (each a “Buyer”) in a guaranteed, exclusive or more specialized fashion. Each buy shall be subject to terms agreed to between the Customer and the Buyer.
“Header Bidding” shall mean a header bidder solution which gives the Customer the ability to manage and monetize inventory with a unified approach at the impression level.
“Wrapper Solution” shall mean a header bidding wrapper solution which gives Customer the ability to manage and monetize inventory against multiple demand sources via various header bidding tags or server to server integrations, respectively.
“Analytics – API” is an application program interface for programmatic access to aggregated data in an analytics platform across a range of data sources and use cases.
“Technology Partner” shall mean a company that Adnuntius works with in order to deliver the Services.
“Customer Properties” shall mean any Customer-controlled websites, mobile applications and/or other digital media properties accessible through the Services.
“Customer Inventory” shall mean the Customer’s and/or any of its clients’ advertising inventory.
“Prohibited Content” shall mean indecent, obscene or pornographic material, hate speech, subject matter that a reasonable person would consider highly objectionable, any material which improperly references illegal activities, or any material that is or contains malware, viruses, or other potentially destructive computer programs and security threats.
Adnuntius shall pay Publisher the Publisher Revenue, net of applicable fees and charges, within ninety (90) days following the end of each calendar month. Adnuntius will pay Publisher through a monthly settlement, meaning that no invoices need sending from the Publisher to Adnuntius. Adnuntius will deliver a Monthly Statement stating the gross Publisher Revenue.
Any Publisher Revenue that remains unpaid by a Demand Partner for a period greater than one-hundred twenty (120) days of the invoice date shall be deemed an “Outstanding Receivable”, and an adjustment for such Outstanding Receivable may be made in the subsequent Monthly Statement. Publisher shall then have the right to pursue collection of the Outstanding Receivable directly from the applicable Demand Partner, with reasonable assistance from Adnuntius upon request. The Adnuntius Fees related to an Outstanding Receivable shall only be payable as to the portion of the Outstanding Receivable collected by Publisher or Adnuntius from the Demand Partner.
4.4 Use of Services
4.4.1 Private marketplace program. Customer acknowledges and agrees that, if the Private Marketplace program is elected by Customer, then notwithstanding anything to the contrary in this Agreement, (a) Adnuntius is not responsible for any acts or omissions of Customer or any Buyer or Demand Partner who transacts within the Private Marketplace program, (b) Customer hereby authorizes Adnuntius and its technology Partners to disclose Customer’s name and the Customer Properties within the Private Marketplace program, and (c) Customer is solely responsible for satisfying its guaranteed inventory commitments and Adnuntius or its Technology Partners will not be liable, and Customer will not hold Adnuntius or its Technology Partners liable, for any guaranteed inventory not achieved by Customer, including any obligation by Customer to provide makegoods.
4.4.2 Header bidding program. Customer acknowledges and agrees that the Header Bidding program includes tools and services that involve Customer’s ad server, and, notwithstanding anything to the contrary in this Agreement, Customer is solely responsible for (a) confirming such tools and services are compatible with Customer’s ad server before enabling, and (b) satisfying Customer’s guaranteed inventory commitments. Adnuntius will not be liable, and Customer will not hold Adnuntius liable, for any guaranteed inventory not achieved by Customer, including any obligation by Customer to provide makegoods.
4.4.3 Wrapper solution. In addition to the relevant acknowledgements and agreements above with respect to the Header Bidding program that shall apply equally to the Wrapper Solution program, Customer acknowledges and agrees that: (a) Adnuntius and its Technology Partners shall have the right to bid through its header tag on any inventory made available by Customer via the Wrapper Solution program; (b) neither Adnuntius nor its Technology Partners guarantee current, ongoing or future support or compatibility for all or any particular header tags by the Wrapper Solution program; (c) Customer shall be responsible for entering into contractual arrangements directly with demand sources other than Adnuntius or its Technology Partners, and Adnuntius or its Technology Partners shall have no responsibilities, obligations or liabilities with respect to those demand sources, their header tags or their ad content (including the collection or payment of any fees or charges associated with such demand sources, the right to make or receive makegoods, or any malware or similar code associated with such ad content); (d) to the extent that any such contractual arrangement with a demand source expires or is terminated, Customer shall be solely responsible for changing the wrapper configuration to stop sending ad requests to such demand source; (e) Adnuntius may discontinue support for a particular header tag if requested to do so by the applicable header tag vendor, and in such case, Adnuntius will endeavor to provide Customer with prompt notice of such discontinuance; and (f) Adnuntius and its Technology Partners will not be liable, and Customer will not hold Adnuntius nor its Technology Partners liable, for any inventory not monetized by Customer via header tags of other demand sources.
4.5 Customer Responsibilities
Customer shall use the Services solely for purposes of (a) displaying advertisements on Customer Properties, and (b) receiving reporting data made available via the Services. Adnuntius reserves the right to suspend Customer’s user interface (“UI”) access to the Services at any time in its sole discretion to rectify technical, reporting and other unforeseen issues; provided, however, that any such UI access suspension shall not impede the monetization of Customer Inventory via the Services as contemplated hereunder. Customer hereby grants Adnuntius during the Term the right to serve and place advertisements on the Customer Properties via the Services. Customer hereby agrees to be responsible for any breach of this Agreement by any clients of Customer who provide or make available any of the Customer Inventory and Customer Properties hereunder.
4.6 No Guarantees
Customer acknowledges and agrees that Adnuntius and its Technology Partners provide no guarantee of volume of impressions delivered, clicks received, or amount of revenue paid or earned under this Agreement.
4.7 Multi-Level Auction
In connection with a multi-level auction run directly by or on behalf of Customer and not directly by Adnuntius or its Technology Partners, Customer shall: (a) adhere to the principles of a second price auction and determine the winning bid on a reasonable basis that treats all bidders equally; (b) use only information available prior to the bid request for the auction to set the bid floor for a specific advertising impression in the auction; and (c) keep Adnuntius informed as to the material characteristics of such multi-level auction (including, without limitation, first versus second price auction, server versus client side, and timeout thresholds) and immediately update Adnuntius in the event of changes in such material characteristics. For multi-level auctions run directly by or on behalf of Customer, Customer Revenue shall be net of auction-related fees to be borne by Customer. Should the material characteristics of such multi-level auction change during the Term, the parties shall work together in good faith to renegotiate the Adnuntius’ fees for the Programs as appropriate; and if the parties are unable to renegotiate such fees within a period of thirty (30) days, either party shall have the right to terminate this Agreement upon thirty (30) days’ prior written notice to the other party.
4.8.1 Adnuntius warranties. Adnuntius represents and warrants to Publisher that Adnuntius will not violate any applicable law or regulation in connection with the performance of the Services.
4.8.2 Customer warranties. Customer represents and warrants to Adnuntius that: (a) each Customer Property that displays advertisements via the Services shall: (i) neither violate any applicable laws or regulations, nor contain Prohibited Content, and (ii) properly categorize the inventory type for the site ID of the Customer Property; (b) it will not, and will not permit any third party to, directly or indirectly (i) access, launch or activate theServices through or from, or otherwise incorporate the Services in, any software application, website or other means other than the Customer Properties, (ii) transfer, sell, lease, syndicate or otherwise sublicense the Services, (iii) generate queries, or impressions of or clicks on ads, through any automated, deceptive, fraudulent or other invalid means, (iv) encourage or require end users or any other persons, either with or without their knowledge, to click on the advertisements displayed through the Services through offering methods that are manipulative, deceptive, malicious or fraudulent, or (v) pass any data that could be used to personally identify any person without obtaining such person’s consent to pass such data; and (c) it has and will maintain throughout the Term all rights, authorizations and licenses (including without limitation any copyright, trademark, patent, publicity or other rights) that are required with respect to the Customer Properties and to permit Adnuntius to provide the Services to Customer as contemplated under this Agreement.
4.9 Inventory Quality
Adnuntius and/or its Technology Partners may test the quality of advertising impressions from Publisher Properties served through the Services. Publisher shall provide Adnuntius with complete transparency with respect to the domain for each such Publisher Property at all times during the Term, and shall comply, and reasonably assist upon request, with the Inventory Quality, controls and procedures (including whitelisting and blacklisting) that Adnuntius may institute. For purposes of this Section, “Inventory Quality Risk” includes, without limitation, (i) risk of fraud, (ii) brand safety violations and (iii) advertisement viewability constraints with respect to inventory of publisher impressions. Inventory Quality Risk monitoring is undertaken through the use of proprietary tools which provide scoring and monitoring services focused on inventory quality. If Adnuntius detects high Inventory Quality Risk on Publisher Properties through use of such tools and services or otherwise, then Adnuntius and/or its Technology Partners may either (i) not send that impression through to auction, or (ii) suspend traffic for such Publisher Properties. For Inventory Quality Risk impressions made available to Adnuntius and/or its Technology Partners for auction, Publisher shall be subject to a standard nominal fee to be added to the Adnuntius Fee (presently $0.02 per thousand impressions) rounded up to the nearest $10 for the applicable month (“Inventory Quality Fee”), provided that no charge will apply if the Inventory Quality Fee for a particular month is less than $100.
In the event that Adnuntius and/or its Technology Partners become aware of inventory quality violations with respect to impressions that have been served on a Publisher Property, then: (a) Adnuntius shall have the right to withhold Publisher Payments solely for the applicable impressions until Adnuntius has completed its good faith investigation with respect to such impressions and concluded any negotiation with the applicable Demand Partners with respect to such impressions; and (b) where Adnuntius and/or its Technology Partners determine that there have been inventory quality violations for all or a portion of such impressions (the “Fraudulent Impressions”), Adnuntius shall reduce pending Publisher Payments by the amount otherwise payable to Publisher for the Fraudulent Impressions and pay Publisher the resulting net amount in the ordinary course.
If there are Fraudulent Impressions served to Adnuntius and/or its Technology Partners on a repeated basis with respect to one or more Publisher Properties, Adnuntius and/or its Technology Partners shall have the right to immediately suspend traffic for some or all Publisher Properties until the levels of Fraudulent Impressions have been reduced to acceptable levels, or to immediately terminate this Agreement upon written notice to Publisher, notwithstanding the provisions of Section 1.6.3 above.