Revised: May 25th, 2018
These Terms and Conditions (the “Terms and Conditions”) are entered into between AcuityAds Inc. (“Acuity”), an Ontario corporation with offices at 181 Bay Street, Suite 320, Toronto, Ontario, M5J 2T3 and the entity specified in the applicable Insertion Order (the “IO”, and together with the Terms and Conditions, the “Agreement”) with offices at the address specified in the IO. Acuity reserves the right to update and change these Terms and Conditions from time to time without notice to Advertiser.
For the purposes of this Agreement, the following terms are defined as follows:
1.1 “Ad” means any advertisement (including, without limitation, all logos, trademarks, creative materials, graphic images and copy therein) provided to Acuity, directly or indirectly, by Advertiser, including without limitation banner advertisements, text advertisements and video advertisements (as such terms are understood in the online advertising industry) and advertisements received from Contracted Clients.
1.2 “Ad Exchange” shall mean any exchange where Ad Inventory can be purchased can be purchased through an Auction.
1.3 “Ad Inventory” shall mean any digital advertising inventory made available for sale through an Ad Exchange, including, but not limited to, web display, mobile, application and/or widget-based advertising inventory.
1.4 “Advertiser” shall mean the Advertiser set forth in the IO and shall, for purposes of Advertiser’s obligations under these Terms and Conditions, include any Contracted Client. The obligations of Advertiser and a Contracted Client under this Agreement shall be joint and several.
1.5 “Auction” means the real-time bidding process for Ad Inventory offered through Ad Exchanges.
1.6 “Campaign” means the advertisement campaign to be operated by Advertiser through the Platform.
1.7 “Platform” means the advertising machine learning advertising platform developed and owned by Acuity.
For clarity, all capitalized terms used in these Terms and Conditions but not otherwise defined herein shall have the meaning ascribed to them in the IO.
2.1 Acuity hereby grants to Advertiser a non-exclusive, non-transferable license to use the Platform for purposes of conducting Campaigns during the Term in accordance with this Agreement. As between Advertiser and Acuity, Advertiser acknowledges that Acuity is the owner of all intellectual property rights in and to the Platform including all content thereon (other than the Ads) and, except as otherwise expressly permitted by this Agreement, Advertiser shall not at any time do or suffer to be done any act or thing that will in any way impair the rights of Acuity in and to the Platform. Nothing in this Agreement grants, nor shall Advertiser acquire hereby, any right, title or interest in or to the Platform or any goodwill associated with the Platform, other than those rights expressly granted hereunder. Upon the termination of this Agreement for any reason, all rights in the Platform granted to Advertiser hereunder shall automatically revert to Acuity, and Advertiser shall have no further rights in the Platform.
2.2 Acuity will provide Platform and sales training as well as support over the phone and WebEx as needed by Advertiser. An aggregate of thirty (30) hours of such training and support will be provided to Advertiser during any twelve consecutive months at no additional charge. If Advertiser requests more than 30 hours of training and support, Advertiser will pay Acuity for consulting services at a rate of one-hundred dollars ($100) net per hour. If Advertiser requests in person training, Advertiser will reimburse Acuity for all reasonable out of pocket expenses.
2.3 Advertiser’s use of the Platform shall at all times comply with all applicable laws, rules, regulations and ordinances as well as any written policies or procedures that Acuity may provide to Advertiser from time to time in connection with Advertiser’s use of the Platform. Acuity reserves the right to monitor the Platform and Advertiser’s use of the Platform from time to time in its sole discretion.
3. SALES AGENCY
Subject to the terms and conditions of this Agreement, Acuity hereby grants Advertiser the limited, non-transferrable right (the “Selling Rights”) to act as the sales representative for the Platform (the “Sales Agency Services”) and to provide advertising services to third parties through the Platform (“Advertiser Services”). Exercise of these rights entitle Advertiser:
3.1 to advertise the existence of the Platform and the Advertiser Services;
3.2 to enter into and execute agreements (in such form as Acuity may approve from time to time) in respect of the Advertiser Services (the “Advertiser Agreements”). For purposes of this Agreement, upon entering into an Advertiser Agreement, a third party shall be a “Contracted Client”;
3.3 to process all payments from Contracted Clients received in connection with the Advertiser Services (the “Payment Processing”);
3.4 to carry out such other duties and obligations as are specifically authorized by this Agreement.
Exercise of the Selling Rights shall be at Advertiser’s sole cost and expense and shall require Advertiser to provide to Acuity such content and information about the Contracted Client and the Advertiser Services to be provided to such Contracted Client, as Acuity may request.
For the avoidance of doubt, Advertiser shall not permit any Contracted Client to directly use or access the Platform without the written consent of Acuity. Rather, Advertiser shall only have the right to use the Platform on behalf of, and for the Contracted Client’s benefit.
Advertiser shall submit to Acuity for review any and all advertisements and/or marketing materials (collectively, “Marketing Materials”) to be used by Advertiser in connection with the Sales Agency Services and Advertiser Services. Acuity shall have the right to approve or reject the Marketing Materials in its sole discretion. Advertiser shall not make any representations, warranties, statements or claims about the Platform, except as approved by Acuity in its sole discretion.
4. ADVERTISER OBLIGATIONS
Advertiser hereby grants to Acuity a worldwide, royalty free, sub-licensable, non-exclusive right and license to use, distribute, reproduce, publicly and digitally display and perform, transmit and broadcast (collectively, “Use”) the Ads (and any trademarks, trade names, service marks, copyrights, URLs or other proprietary rights of Advertiser therein) in connection with the Campaign.
Advertiser represents and warrants to Acuity that each Ad (and any and all content therein) and the distribution thereof in accordance with this Agreement:
4.1 complies, as applicable, with the Interactive Advertising Bureau (“IAB”) Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (US), and/or the IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less and Late Creative Policy (Canada);
4.2 does not infringe the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;
4.3 does not violate any applicable law, statute, ordinance or regulation regarding the creation and marketing of online materials including, without limitation, those governing false and/or deceptive advertising;
4.4 is true, accurate and complete;
4.5 is not unlawful, defamatory or libelous;
4.6 is not pornographic or obscene; and
4.7 does not contain viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines.
Advertiser further represents and warrants that:
4.1.1 Prior to delivery to Acuity, Advertiser will have obtained all consents, releases, waivers and rights (including, without limitation, all rights in copyright, moral rights, trade-mark and trade name rights and other intellectual property rights) necessary for the grant to Acuity, and exploitation by Acuity, of the rights and licenses granted to Acuity in the Ads pursuant to this Agreement; Acuity reserves, in its sole discretion, the right (but not the obligation) to: (i) review any Ads used by Advertiser through the Platform prior to Use; and/or (ii) to reject or refuse to serve any Ad that is, in its sole discretion, objectionable or which may expose Acuity, its suppliers and each of their affiliates, or its other clients to any harm or liability of any type.
4.2.1 Advertiser has paid, or will have paid prior to use thereof, to the proper person, firm or corporation when due and payable, all residual, re-use or similar payments, all step-up fees, all music synchronization fees or royalties, all mechanical reproduction fees or royalties, all performance rights fees or royalties and all license payments and all other amounts payable to third parties as a result of, or in connection with, the Use of the Ads hereunder.
4.3.1 Advertiser represents and warrants that it is in compliance with the Digital Advertising Alliance’s (“DAA”) Self-Regulatory Principles for Online Behavioral Advertising (“DAA OBA Principles”) and the Canadian Self-Regulatory Principles for Online Behavioural Advertising (“DAAC OBA Principles”), including the provision of appropriate notice and choice of online behavioral advertising. Advertiser represents and warrants that any websites where data is collected for online behavioral advertising provides users notice that third parties will collect data for purposes of serving targeted ads and provide a link to a means by which users may opt out of such targeted ads, such as www.aboutads.info or www.youradchoices.ca. For Advertiser’s convenience, we offer the following sample privacy disclosure, but strongly encourage Advertiser to work with counsel to ensure that these disclosures accurately represent Advertiser’s practices as legal requirements may change and/or be subject to differing legal interpretations: “We use a third-party service provider to serve ads and/or collect data on our behalf across the Internet and sometimes on this website. They may collect information about your visits to our website, and your interaction with our products and services to tailor advertising messages on this website and other sites. The information collected by these third-parties may include your devices IP address, user agent and other device level pseudonymous information. If you would like more information about this practice and would like to understand your choices about how to control how this information is used, please click here.”
5. BILLING TYPE
Advertiser agrees that it shall pay to Acuity all amounts owing to Acuity in accordance with the Billing Type selected by Advertiser in the Platform for a Campaign, and subject to the Monthly Minimum Commitment (as set forth in the IO), if any. For purposes of this Agreement:
“Dynamic Campaign” means that Acuity will invoice Advertiser on a monthly basis for all Ad Inventory purchased by Advertiser pursuant to a Campaign, plus a percentage as set forth in the Platform.
“Fixed CPM Campaign” – means that Acuity will invoice Advertiser on a monthly basis for the total number of impressions (per thousand) delivered pursuant to a Campaign at the rate for such impressions set forth by the Advertiser on the Platform.
Acuity Ads Inc. will invoice Advertiser monthly. Unless otherwise stated in the IO, Advertiser shall remit payment to the Acuity within thirty (30) days of receipt of the applicable invoice. All late payments shall bear interest at the rate of 2% per month, or the highest rate allowable by law, whichever is lower. Advertiser agrees that it shall be solely liable for payment to Acuity of all amounts owing pursuant to the terms hereof, and (if Advertiser is an agency or intermediary) it shall make all necessary payments hereunder, notwithstanding any non-payment to Advertiser by any third party.
In the event of default relating to the payment of any invoice, Acuity shall have the right, without penalty or liability, to discontinue the performance of the Services. Furthermore, Advertiser agrees to pay all costs incurred by Acuity in collecting any delinquent payments, including, but not limited to, collection agency and attorneys’ fees and costs.
The term of this Agreement shall be as stated in the IO, unless earlier terminated by either party in accordance with the terms hereof.
Either party may terminate this Agreement upon 30 days written notice.
This Agreement may be terminated immediately by either party if any of the following events occur:
8.1 subject to Section 8(b), the other party materially breaches or materially fails to perform any of its obligations under this Agreement, and such breach or failure to perform remains unremedied (if capable of being remedied) for a period of thirty (30) days after the other party has been given written notice thereof;
8.2 the other party is in breach or default of any of its payment obligations under this Agreement and such breach or default remains unremedied for a period of seven (7) days after the other party has been given written notice thereof; or
8.3 the other party becomes bankrupt, insolvent, makes a composition or arrangement with its creditors, has a receiver, administrator, administrative receiver or other encumbrance take possession of or control over any substantial part of its assets, or otherwise undergoes any event analogous to any event referred to above in any jurisdiction.
8.4 For low activity as described herein: If Advertiser’s monthly spend is less than ten-thousand ($10,000) net per month for 3 consecutive months, Acuity reserves the right to terminate the Agreement for low activity, without liability for such termination. Notwithstanding the foregoing, Advertiser remains responsible and liable for payments outstanding upon termination.
Upon termination of this Agreement and subject to Section 26: (i) Advertiser shall immediately discontinue use of the Platform, and all rights granted by Acuity to Advertiser under this Agreement shall cease; (ii) Advertiser shall promptly pay to Acuity all amounts properly due and owing to Acuity hereunder.
If at any time Acuity for any reason decides to cease licensing the Platform to third parties for any reason, Acuity may cancel this Agreement by providing not less than thirty (30) days’ notice to Advertiser. If Advertiser has pre-paid any funds, Acuity shall, without further liability to Advertiser, refund to Advertiser unspent portion of such funds, less any fees properly due and owing to Acuity.
9. DISCLAIMER OF WARRANTIES
THE PLATFORM AND ANY SERVICES PROVIDED BY ACUITY HEREUNDER (“SERVICES”) ARE PROVIDED “AS IS” AND ACUITY HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED, STATUTORY OR IMPLIED, REGARDING THE SERVICES, THE PLATFORM OR ANY PORTIONS THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR OTHER IMPLIED WARRANTIES ARISING IN THE COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ACUITY SPECIFICALLY DISCLAIMS, AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING: (1) THE NUMBER OF PERSONS WHO WILL VIEW OR ACCESS THE ADS; (2) ANY BENEFIT ADVERTISER OR ANY CONTRACTED CLIENT MIGHT OBTAIN FROM THE PLATFORM, THE SERVICES OR A CAMPAIGN; (3) THAT THE PLATFORM OR THE SERVICES WILL INCREASE SALES, GOODWILL OR ACHIEVE A SPECIFIC RESULT; OR (4) THAT THE MEASURABLE GOALS WILL BE ACHIEVED OR ACHIEVED WITHIN THE BUDGET. ACUITY DOES NOT WARRANT: (A) THAT THE PLATFORM OR THE SERVICES WILL BE AVAILABLE AT ALL TIMES OR ANY GIVEN TIME, OR FROM ANY PARTICULAR LOCATION; (B) WILL BE SECURE OR ERROR-FREE; (C) THAT DEFECTS WILL BE CORRECTED; OR (D) THAT THE SERVICES AND/OR THE PLATFORM ARE FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ACUITY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
ADVERTISER FURTHER ACKNOWLEDGES AND AGREES: (1) THAT THE USE OF THE PLATFORM AND PERFORMANCE OF THE SERVICES ARE CONTINGENT UPON SUCCESSFUL PERFORMANCE AND OPERATION OF THE INTERNET, AD EXCHANGES AND AUCTIONS AND, ACCORDINGLY, ACUITY SHALL NOT BE RESPONSIBLE FOR ANY FAILURES, DELAYS OR DAMAGES CAUSED BY THE MALFUNCTIONING OR DEFAULT OF SAME THAT ARE REASONABLY BEYOND THE CONTROL OF ACUITY; AND (2) ALL NUMBERS AND AMOUNTS CONTAINED IN THE IO RELATING TO IMPRESSIONS, ACTIONS, ACQUISITIONS OR APPLICATIONS ARE ESTIMATES ONLY AND ARE NOT GUARANTEED BY ACUITY. ACUITY SHALL FOLLOW A UNIFORM POLICY TO AVOID DISCRIMINATION IN ITS DEALINGS WITH ADVERTISERS AND AGENCIES. ALTHOUGH ACUITY MAKES EVERY EFFORT TO UPHOLD THE HIGHEST STANDARDS OF ONLINE MARKETING CONDUCT, IT WILL NOT BE LIABLE TO ADVERTISER FOR ANY LOSSES OR DAMAGES INCURRED BY ADVERTISER OR A CONTRACTED CLIENT AS A RESULT OF ADVERTISER’S OR A CONTRACTED CLIENT’S ACTIONS OR OMISSIONS.
10. LIMITATIONS ON LIABILITY
NEITHER ACUITY NOR ITS AFFILIATES WILL BE LIABLE TO ADVERTISER OR ANY THIRD PARTY, UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF INFORMATION OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH IN THIS PARAGRAPH ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ADVERTISER AND ACUITY. THE RIGHTS AND LICENSES GRANTED BY ACUITY HEREUNDER WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ACUITY’S MAXIMUM AGGREGATE LIABILITY TO ADVERTISER OR ITS CONTRACTED CLIENTS FOR ANY CAUSES OF ACTION WHATSOEVER, AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, WILL BE THE GREATER OF: (i) ONE HUNDRED DOLLARS ($100.00); OR (ii) TWENTY-FIVE PERCENT OF THE NET REVENUE EARNED BY ACUITY UNDER THIS AGREEMENT IN THE YEAR PRIOR TO THE EVENT GIVING RISE TO CLAIM OR CAUSE OF ACTION. FOR THE AVOIDANCE OF DOUBT, “NET REVENUE” MEANS THE AMOUNT ACTUALLY RECEIVED BY ACUITY PURSUANT TO THIS AGREEMENT, LESS ANY AMOUNTS PAID BY ACUITY FOR AD INVENTORY IN CONNECTION WITH SUCH REVENUE.
Advertiser acknowledges and agrees that all software, technology, know-how, information, data, content, and other property provided, created, developed or licensed by Acuity in connection with the Platform (collectively, “Intellectual Property”) is confidential and proprietary to Acuity. Advertiser agrees that it shall not, and shall not permit a third party, during the Term of this Agreement or thereafter, directly or indirectly, to: (i) copy, alter, decompile, translate, disassemble, modify, reverse-compile, reverse engineer, redistribute, make any derivative use of, furnish, distribute, rent, sell, lease, lend, sublicense, give or otherwise transfer, permit access to or disclose the Intellectual Property, or any part thereof, or any interest therein, in any form to any other firm, person or entity without the express written consent of Acuity; (ii) use the Intellectual Property: (A) for any illegal purpose or in a manner that violates any applicable law or regulation; or (B) in a manner that infringes the rights of any third party, including without limitation, intellectual property, privacy, publicity or contractual rights.
Advertiser acknowledges and agrees that all proprietary rights in the Intellectual Property provided or otherwise utilized in connection with this Agreement are and shall remain the property of Acuity and Advertiser shall have no right or interest in the Intellectual Property other than as expressly set forth in this Agreement and that this Agreement shall not be construed as granting Advertiser any right or license, whether by implication, estoppel or otherwise, not expressly set forth in this Agreement. This Agreement does not transfer ownership rights of any description in the Intellectual Property to Advertiser or to any other third party.
12. PUBLICITY AND CONTENT DISTRIBUTION
Advertiser agrees that part of the consideration being provided to Acuity pursuant to this Agreement is the right for Acuity to cite Advertiser from time to time on the Acuity website, in presentations, speeches, press release and other media as a client of Acuity.
As used herein, “Confidential Information” shall mean: (a) either party’s proprietary information; (b) information marked or designated by either party as confidential; (c) suppression lists disclosed between the parties pursuant to this Agreement; (d) information otherwise disclosed by either party in a manner consistent with its confidential nature; (e) the terms and conditions of this Agreement, including pricing information; and (f) either party’s information that is conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential. The parties acknowledge that, as a result of the provision of the Services, one party may disclose Confidential Information (“Disclosing Party”) to the other party (“Receiving Party”). Therefore, the Receiving Party agrees that it will make no use (expect solely for purposes of this Agreement) or disclosure of the Disclosing Party’s Confidential Information without obtaining the Disclosing Party’s prior written consent. Additionally, the Receiving Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s) and/or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) shall be explicitly bound confidentiality obligations no less restrictive than as set forth herein, and will use reasonable care, but not less care than they use with respect to their own information of like character, to prevent disclosure of any Confidential Information. Nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in, or making any representations or warranties in respect of, any Confidential Information disclosed under this Agreement (and each Party’s reliance on such Confidential Information is at its sole risk and responsibility.) This Section 13 shall survive any termination of this Agreement for a period of three (3) years thereafter. The Receiving Party agrees that monetary damages for breach of confidentiality under this Section 13 may not be adequate and that the Disclosing Party shall be further entitled to seek injunctive relief. Notwithstanding anything contained herein to the contrary, confidentiality provisions shall not apply where the Receiving Party can demonstrate with clear evidence that the information: (a) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of the Receiving Party; (c) was rightfully received by the Receiving Party from a third party who was not bound under any confidentiality provisions; or (d) was disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
Advertiser agrees to indemnify, defend and hold harmless Acuity, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys’ fees) asserted by any third party due to, arising from, or in connection with: (i) any Ad supplied or used by Advertiser hereunder; (ii) any act or omission of any Contracted Client, (iii) any breach by Advertiser of the terms of this Agreement including, without limitation, any representation or warranty contained herein; or (iv) the negligence, willful misconduct or fraudulent activities of Advertiser.
During the Term of this Agreement and for a period of one (1) year following the termination of this Agreement, Advertiser shall not solicit, seek out or employ, either directly or indirectly (as a consultant, independent contractor or otherwise) any employee or consultant engaged by Acuity who is or was associated with the performance of Acuity’s obligations pursuant to this Agreement, except without the prior written consent of Acuity. Notwithstanding the foregoing, the hiring of employees who respond to a generally advertised job opening shall not be considered a solicitation as contemplated by this clause.
All references in this Agreement to dollars, unless otherwise specifically indicated, are expressed in US dollars if Advertiser’s registered office is in the US, and in Canadian dollars if Advertiser’s registered office is in Canada.
17. GOVERNING LAW/JURISDICTION
Any dispute arising from or related to this Agreement will be governed by the laws of the Province of Ontario without regard to conflict of law principles. Subject to Section 18, below, the exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement will be the Courts of the Province of Ontario located in Toronto, Ontario, Canada and each of the parties hereto irrevocably waives any objection to jurisdiction and venue in such courts.
18. DISPUTE RESOLUTION
Any dispute regarding this Agreement, including the validity, existence, binding effect, interpretation, performance, breach or termination, and including tort claims, shall be referred to and finally determined, to the exclusion of the courts, by a single arbitrator. The arbitration shall take place in Toronto, Ontario, in English, and in accordance with the National Arbitration Rules of the National Arbitration Institute of Canada, Inc. In all other respects the arbitration shall be governed by and subject to the Ontario Arbitration Act.
UNLESS OTHERWISE REQUIRED BY LAW, ADVERTISER MUST NOTIFY ACUITY WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR ADVERTISER WAIVES THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENT, FACTS OR DISPUTE.
19. WAIVER OF CLASS ACTIONS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL PARTIES TO ANY ACTION ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT MUST BE INDIVIDUALLY NAMED. ADVERTISER HEREBY WAIVES ANY RIGHT IT MAY HAVE FOR ANY DISPUTE PERTAINING TO THE SERVICES OR THIS AGREEMENT TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS, OR ON BASIS INVOLVING DISPUTES BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC.
Advertiser may not assign this Agreement without prior written consent from Acuity, which consent shall not be unreasonably withheld or delayed. Acuity may assign all or any portion of its duties and obligations hereunder to any affiliate, successor-in-interest and/or acquirer of all or substantially all of Acuity’s assets. Subject to the foregoing, the terms of this Agreement will be fully binding upon, inure to the benefit of and be enforceable by, the parties’ respective successors, heirs, executors, administrators and permitted assigns.
Any term or provision of this Agreement that is invalid or unenforceable in any situation or in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
22. SECTION REFERENCES
The section and subsection headings used in this Agreement are for reference and convenience only, and shall not affect in any way the meaning or interpretation of the Agreement. The IO, including all approved amendments, are incorporated into and a part of this Agreement.
The failure of Acuity to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable.
24. RELATIONSHIP OF THE PARTIES
The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employer-employee relationship is intended or created hereby. Notwithstanding Section 1.3, if Advertiser is entering into this Agreement on behalf of a third party, such third party shall have not have any rights under this Agreement.
25. FORCE MAJEURE
Neither Acuity nor any of its suppliers shall be liable to Advertiser for any delay in performance or failure to perform caused directly or indirectly by fire, explosion, accident, flood, labor trouble, weather condition, any regulation, rule or act of any government or governmental agency, or the inability to obtain or shortage of suitable material, components, parts, equipment, machinery, fuel, power, communication facilities or transportation, act of God, armed conflicts, civil commotion or any other cause of like character beyond the reasonable control of Acuity or any of its suppliers.
If Acuity terminates this Agreement for any reason, all rights and obligations under this Agreement shall cease, save for Advertiser’s obligation to pay all fees property due and owing to Acuity hereunder to the date of termination. In addition, the following Sections: 9 – 15, 17 – 20 and 26 and such other provisions hereof of thereof which expressly, or by their nature are intended to, survive termination.
27. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter of this Agreement. This Agreement is non-exclusive to Acuity and Acuity shall have the right to enter into similar agreements with other third parties. The parties hereby represent and warrant that they shall at all times fully comply with all applicable state and federal statutes, rules and regulations with respect to their respective businesses including, without limitation laws governing deceptive trade practices.
Advertiser shall promptly notify Acuity in the event it: (i) becomes subject to any bankruptcy or insolvency proceedings; (ii) has a dispute with Acuity; or (iii) otherwise is required to provide notice to Acuity hereunder. Advertiser shall deliver any and all notices required to be delivered to Acuity hereunder by Mail Notification (as defined below) to the address set forth above, Attn: Accounting. Advertiser hereby acknowledges and agrees that Acuity may deliver any notice required to be delivered to Advertiser either by means of posting such notice to Acuity’s website located at www.acuityads.com (“Web Notification”) by email to the email address of Advertiser indicated in the IO (“Email Notification”), or by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of Advertiser (“Mail Notification”). Any such notification shall be deemed effective: (i) in the event of Web Notification, on the earlier of the date the Advertiser next visits Acuity’s website or thirty (30) days from the date such Web Notification is posted on Acuity’s website; (ii) upon transmission when delivered by Email Notification; or (iii) when delivered by Mail Notification.
ACUITYADS DATA PROCESSING ADDENDUM
This AcuityAds Data Processing Addendum (“DPA”) is incorporated by reference into any and all services agreements, media buying agreements, insertion orders and addendums currently in place between Buyer (defined below) and AcuityAds, Inc. (“Agreement”). This DPA is entered into as of the later of the dates beneath the parties’ signatures below. By entering into this DPA, Buyer represents and warrants that Buyer has the authority to legally bind both the Buyer and all of Buyer’s personnel, representatives and/or Affiliates operating pursuant to any such Agreement referenced herein.
The parties agree to comply with the following provisions with respect to any Personal Data of one or more Data Subjects located in the European Economic Area Processed in connection with the Agreement. The purposes of the DPA is to ensure such Processing is conducted in accordance with Data Protection Laws, including the GDPR and with due respect for the rights and freedoms of individuals whose Personal Data are processed. References to the Agreement will be construed as including this DPA. To the extent that the terms of this DPA differ from those in the Agreement, the terms of this DPA shall govern.
- “AcuityAds Third Party Partner” means any entity, exclusive of any AcuityAds engaged Processors or Sub-processor, engaged by AcuityAds for the Processing of Personal Data.
- “Affiliates” means any entity which is controlled by, controls or is in common control with one of the parties.
- “Data Protection Laws” means all privacy and data protection laws and regulations applicable to the Processing of Personal Data under the Agreement, including, as applicable: (a) the GDPR; and/or (b) the Federal Data Protection Act of 19 June 1992 (Switzerland) and applicable to the Processing of Personal Data under the Agreement.
- “Data Subject” means the individual to whom Personal Data relates.
- “Effective Date” shall have the meaning ascribed to such term in Section 11.
- “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
- “Buyer Third Party Partner” means any entity engaged by Buyer for the Processing of Personal Data.
- “Security Breach” has the meaning set forth in Section 7 of this DPA.
- “Sub-processor” means any Processor or sub-processor engaged by either party for the Processing of Personal Data.
- “Supervisory Authority” has the meaning set forth in Article 51 of the GDPR, or means the Federal Data Protection and Information Commissioner of Switzerland, as applicable.
- “Term” means the period from the Effective Date to the date the DPA is terminated in accordance with Section 11.1.
- The terms “Controller“,“Personal Data”,“Processor,” “Processed” and “Processing,” have the meanings given to them in Applicable Privacy Laws. If and to the extent that Applicable Privacy Laws do not define such terms, then the definitions given in EU Data Protection Law will apply.
2. PROCESSING OF PERSONAL DATA – ARRANGEMENT BETWEEN INDEPENDENT CONTROLLERS
- The parties agree that Buyer and AcuityAds are independent Controllers with respect to the processing of such Personal Data under this DPA as described in Appendix 1.To the extent that the data protection legislation of another jurisdiction is applicable to either party’s processing of data, the parties acknowledge and agree that the relevant party will comply with any obligations applicable to it under that legislation with respect to the processing of that data. Both parties shall keep a record of all Processing activities with respect to Personal Data covered under this DPA as required under GDPR.
- Each party will comply with the obligations applicable to it under the Data Protection Laws with respect to the processing of Personal Data covered under this DPA, including but not limited to: (i) providing the other party contact details for each party’s Data Protection Officer which are accurate and up to date; (ii) providing reasonable information and assistance to the other party conducting data protection impact assessments as required by Data Protection Laws; and (iii) providing reasonable information and assistance to the other party regarding consultations between that party and a Supervisory Authority. Buyer shall, in its use or receipt of the Services, Process Personal Data in accordance with the requirements of the Data Protection Laws. AcuityAds shall, in its provision of the Services, Process Personal Data in accordance with the requirements of the Data Protection Laws. The objective of its Processing of Personal Data by both parties is the performance of the Services pursuant to the Agreement.
3. RIGHTS OF DATA SUBJECTS
- Each party is separately responsible for honouring Data Subject access requests under Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable) and responding to correspondence, inquiries and complaints from data subjects. Each party shall provide reasonable and timely assistance to the other party as necessary to help facilitate compliance with this Section 3.1.
4. ACUITYADS AND BUYER PERSONNEL
- Both parties shall ensure that their respective personnel engaged in the Processing of Personal Data under this DPA are informed of the confidential nature of the Personal Data as well as any security obligations with respect to such Personal Data.
- 4.2 AcuityAds will take appropriate steps to ensure compliance with the Security Measures outlined in Appendix 2by its personnel to the extent applicable to their scope of performance, including ensuring that all persons authorised to process Personal Data under this DPA have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality and that any such obligations survive the termination of that individual’s engagement with AcuityAds.
- 4.3 AcuityAds shall ensure that access to Personal Data covered under this DPA is limited to those personnel who require such access to perform the Services.
- 4.4 Buyer shall further ensure that access to Personal Data provided by AcuityAds pursuant to this DPA is limited to those personnel who require such access to receive the Services.
- Buyer acknowledges and agrees that AcuityAds may engage third-party Sub-processors in connection with the provision of the Services. AcuityAds acknowledges and agrees that Buyer may engage third-party Sub-processors in connection with the receipt of the Services. Both parties will have a written agreement with each Sub-processor and agrees that any agreement with a Sub-processor will include substantially the same data protection obligations as set out in this DPA.
- A list of Sub-processors will be made available by AcuityAds. AcuityAds may change the list of such other Sub-processors by no less than 10 business days’ notice. If Buyer objects to AcuityAds’ change in such Sub-processors, AcuityAds may, as its sole and exclusive remedy, terminate the portion of the Agreement relating to the Services that cannot be reasonably provided without the objected-to new Sub-processor by providing 30 days’ written notice to Buyer. Buyer must provide a list of Sub-Processors to AcuityAds at AcuityAds’ written request.
- Both parties shall be liable for the acts and omissions of its Sub-processors to the same extent such party would be liable under the terms of this DPA, except as otherwise set forth in the Agreement.
- Buyer acknowledges and agrees that neither Buyer Third Party Partners nor AcuityAds Third Party Partners are Sub-processors and AcuityAds assumes no responsibility or liability for the acts or omissions of such Buyer Third Party Partners and AcuityAds Third Party Partners.
6. SECURITY AND AUDIT RIGHTS
AcuityAds shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Personal Data it processes under this DPA. AcuityAds will implement and maintain technical and organizational measures to protect such Personal Data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access as described in Appendix 2 (the “Security Measures”). As described in Appendix 2, the Security Measures include measures to encrypt Personal Data; to help ensure ongoing confidentiality, integrity, availability and resilience of AcuityAds’s systems and services; to help restore timely access to Personal Data following an incident; and for regular testing of effectiveness. AcuityAds may update or modify the Security Measures from time to time provided that such updates and modifications do not result in the degradation of the overall security of the Services.
- Both parties will (taking into account the nature of the processing of Personal Data under this DPA) cooperatively and reasonably assist each other in ensuring compliance with any of each other’s respective obligations with respect to the security of Personal Data and Personal Data breaches under this DPA, including (if applicable) any obligations pursuant to Articles 32 to 34 (inclusive) of the GDPR, by: (a) in the case of AcuityAds, implementing and maintaining the Security Measures in accordance with Appendix 2; and (b) complying with the terms of Section 7 of this DPA.
- Each Party shall make available to the other Party all information necessary to demonstrate compliance with the DPA and each Party may (or if mandated by a Supervisory Authority, will) allow for an audit by a mutually agreeable firm. To request an audit, the requestor must submit a detailed audit plan at least four (4) weeks in advance of the proposed audit date describing the proposed scope, duration, and start date of the audit. The auditor must be approved in advance by both parties (such approval may not be unreasonably withheld) and execute a written confidentiality agreement acceptable to both parties before conducting the audit. The audit must be conducted during regular business hours, subject to both companies’ policies, and may not unreasonably interfere with either company’s business activities. Any such audits are at the expense of the party making the request. Both parties agree to share information regarding any non-compliance discovered during the course of an audit.
7. SECURITY BREACH MANAGEMENT AND NOTIFICATION
- If either party becomes aware of any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to any Personal Data transmitted, stored or otherwise Processed on the other party’s equipment or facilities under this DPA (“Security Breach”), such party will promptly notify the other party of the Security Breach. Notifications made pursuant to this section will take place within a reasonable time and certainly no longer than three business days after discovery and shall describe, to the extent possible, details of the Security Breach, including steps taken to mitigate the potential risks and any recommended steps that either or both parties should take to address the Security Breach. Each party will promptly investigate the Personal Data Breach if it occurred on its infrastructure or in another area it is responsible for and will assist the other party as reasonably necessary for both parties to meet their obligations under Data Protection Laws.
- Both parties agree that an unsuccessful Security Breach attempt will not be subject to this Section 7. An unsuccessful Security Breach attempt is one that results in no unauthorised access to Personal Data processed pursuant to this DPA or to any of either party’s equipment or facilities storing Personal Data, and may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, or similar incidents.
- Notification(s) of Security Breaches, if any, will be delivered to one or more of the other party’s business, technical or administrative contacts by any reasonable means, including via email. It is each party’s responsibility to ensure it maintains accurate contact information.
- Any notification of or response to a Security Breach under this Section 7 will not be construed as an acknowledgement by either party of any fault or liability with respect to the Security Breach.
- AcuityAds shall implement reasonable technical and organizational Security Measures to provide a level of security appropriate to the risk in respect to the Personal Data. Buyer shall implement security measures at least as stringent as those outlined in Appendix 2. As technical and organisational measures are subject to technological development, either party is entitled to implement alternative measures provided they are at least as protected as those offered by the Security Measures and they do not fall short of the level of data protection set out by Data Protection Law.
8. RETURN AND DELETION OF PERSONAL DATA
- Both parties will comply with instructions from the other party to delete certain Personal Data as soon as reasonably practicable and within a maximum period of 90 days, unless Data Protection Law (or, in the case the data is not subject to Data Protection Law, applicable law) requires further storage.
- On expiry of the Agreement, both parties hereby instruct the other to delete all Personal Data of the other party from their respective systems and discontinue processing of such Personal Data in accordance with Data Protection Law as soon as reasonably practicable and within a maximum period of 90 days, unless Data Protection Law (or, in the case the data is not subject to Data Protection Law, applicable law) requires further storage. This requirement shall not apply to the extent that the Personal Data has been archived on back-up systems so long as such Personal Data is isolated and protected from any further processing except to the extent required by applicable law.
9. CROSS-BORDER DATA TRANSFERS
- AcuityAds may, subject to this Section 9, store and process the relevant Personal Data in the European Economic Area, Canada and the United States.
- To the extent that Personal Data will be transferred outside of the EU pursuant to this DPA, both parties agree that the Standard Contractual Clauses for Controller to Controller transfers in the form approved by the European Commission and available at https://ec.europa.eu/info/law/law-topic/data-protection/data-transfers-outside-eu/model-contracts-transfer-personal-data-third-countries_en(as amended or updated from time to time) (“Standard Contractual Clauses”) shall be incorporated by reference and form an integral part of this DPA. Purely for the purposes of the descriptions in the Standard Contractual Clauses and only as between Buyer and AcuityAds, AcuityAds agrees that it is a “data importer” and Buyer is the “data exporter” under the Standard Contractual Clauses. Further, Appendix 1 and 2 of this DPA will take the place of Appendixes 1 and 2 of the Standard Contractual Clauses respectively.
- The use of or provision of the Services may require the transfer of Personal Data of Data Subjects located in the EU to countries outside the EEA. Each party will ensure an appropriate mechanism that is recognized by applicable Data Protection Laws is implemented to allow for the data transfer, and shall ensure both it and its Controllers, Processors, and Sub-Processors will comply with the related requirements of the alternative mechanism for data transfer.
- Both parties agree that their respective liability under this DPA shall be apportioned according to each parties’ respective responsibility for the harm (if any) caused by each respective party.
- Liability Cap Exclusions. Nothing in this Section 10 will affect the remaining terms of the Agreement relating to liability (including any specific exclusions from any limitation of liability).
- This DPA will take effect on the date it is executed by Buyer and AcuityAds at the bottom of this Agreement (the “Effective Date”) and will remain in effect until, and automatically expire upon, the deletion of all Personal Data by AcuityAds or Buyer through the Services as described in this DPA.
- Nothing in this DPA shall impact Buyer’s intellectual property rights with respect to Personal Data provided by Buyer under the Agreement except to the extent required by applicable law.
- Nothing in this DPA shall confer any benefits or rights on any person or entity other than the parties to this DPA.
- This DPA may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.
Appendix 1 Subject matter and details of the processing
Data exporter: The data exporter is the AcuityAds, Inc.
Data importer: The data importer is Buyer
Data subjects: The Personal Data concern the following categories of Data Subjects:
The users of the websites, mobile applications and other digital mediums owned and/or operated by AcuityAds Third-Party Partners and any data received from such Third Party Partners as described in the Agreement.
Personal Data pertaining to the personnel of both parties.
Categories of data: The Personal Data concern the following categories of data:
Data on user behaviour collected through pixels placed on the data exporter’s websites, mobile applications and/or digital mediums owned and/or operated by AcuityAds’ Third-Party Partners, including cookie IDs, mobile advertising identifiers and other pseudonymous identifiers of the users of the data exporter’s websites, mobile applications and/or digital mediums as outlined in the Agreement.
Data pertaining to the personnel of both parties necessary for the respective parties’ performance of the Agreement including email addresses, telephone numbers, name, title and billing information.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify): None
Processing operations: The Personal Data transferred will be subject to the following processing activities:
The data importer will access, reproduce, display and store the relevant personal data in order to provide the services as set out in the Agreement.
Appendix 2 Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation):
Description of the technical and organizational security measures implemented by the data importer
Measures with which Personal Data can be processed while denying physical access to IT systems for unauthorised persons (access control):
All of the data importer’s third-party data centers have strict policies for authorization of access into the facilities. Each data center vendor has appropriate policies required by external audits. All of the data importer’s internal personnel are vetted prior to allowing access to data centers.
Measures to hinder unauthorised persons from using IT systems and procedures (access control):
All systems level access is based on directory services and role based security. Additional measures are in place such as VPN and other security measures prior to system level access being available, as described below. All end user level access to AcuityAds’ systems is based on role based security. Shared accounts are not allowed.
The data importer undertakes the following actions, among others, to ensure that persons authorised to use the Acuity Platform or access data processing infrastructure can only access the data underlying their access authorization and that stored data or data undergoing processing cannot be read, copied, altered, or removed without authorization.
The data importer’s employees access infrastructure components with unique accounts that require strong passwords. Remote administration is available only via public key cryptography and password based authentication is not permitted. Access groups have been established to restrict access to only to specific areas that are required for employee responsibilities.
Customers of the data importer may be granted access to the AcuityAds console. Access to the AcuityAds console is limited via a user name and a password to the customer’s authorised persons and additionally to equivalently authorised employees of the data importer. Logical infrastructure configuration prevents the access of one customer’s data by another customer.
Measures to enable persons authorised to use IT procedures to gain exclusive access to the Personal Data that are subject to their access authorisation (access control):
The data importer employs a centralized access management system to control personnel access to production servers, and only provides access to a limited number of authorised personnel. These mechanisms are designed to grant only approved access rights to site hosts, logs, data and configuration information. The data importer requires the use of unique user IDs, strong passwords; and carefully monitored access lists to minimize the potential for unauthorised account use. The granting or modification of access rights is based on: the authorised personnel’s job responsibilities; job duty requirements necessary to perform authorised tasks; a need to know basis; and must be in accordance with the data importer’s internal data access policies and training. Approvals are managed by workflow tools that maintain audit records of all changes. Access to systems is logged to create an audit trail for accountability. Where passwords are employed for authentication (e.g., login to workstations), password policies that follow at least industry standard practices are implemented. These standards include password expiry, restrictions on password reuse and sufficient password strength.
In addition, the data importer has implemented several security related policies that govern the use of AcuityAds technology and data including rules around acceptable use, data classification, information security, and passwords. The data importer’s information security officer is Rachel Kapcan.
Measures to ensure that Personal Data cannot be read, copied, amended or removed by unauthorised persons when the data is transmitted electronically, or when it is being transported, or when it is being stored on data carriers but which allow checks to be made of the destinations targeted when transferring Personal Data using data transmission equipment (routing controls):
Data is encrypted by measures such as SSL. Personal data shall not be transferred outside the scope as authorised under these Clauses, or as otherwise authorised by the data exporter.
Measures that allow retrospective checks to be made on whether Personal Data has been entered into, amended or removed from IT systems, and by whom (input controls):
All data processed in Acuity Platform by an end user of the platform (e.g., CL personnel) is done on a permissions based model, all user accounts are enabled/disabled in accordance with the security policy. All accounts are individual. Shared accounts are not allowed. Audit Trail is kept for user actions and is logged.
Email and corporate systems access is granted based on directory services and role based security.
Measures to ensure that Personal Data to be processed on CONTROLLER’s behalf is only processed in accordance with CONTROLLER’s directives (performance controls):
The data exporter is a user of the Acuity Platform, therefore setting up of data collection mechanisms, collection of data, verifying data integrity sit with the data exporter. The personal data shall only be processed in the manner authorised under these Clauses and all sub processors shall only be employed in compliance with the provisions of these Clauses.
Measures to ensure that Personal Data is protected against incidental damage or loss (availability controls):
Data is kept in a storage framework with at least three copies natively made and stored. Additionally, the data importer replicates data between data centers for disaster recovery with ability to restore if needed, although the data importer will not replicate lat/long or other data points which might be considered sensitive in the EU.
Measures to ensure that the different purposes for processing data can be identified – especially for PROCESSOR’s different controllers – and that data to be processed is processed separately from each other (separation controls):
AcuityAds stores data in a multi-tenant environment on servers owned by AcuityAds. The Services database and file system architecture are replicated between multiple data centers. AcuityAds logically isolates data on a per end user basis at the application layer. AcuityAds logically separates Customer’s data, including data from different end users, from each other, and data for an authenticated end user will not be displayed to another end user (unless the former end user or administrator allows the data to be shared). A central authentication system is used across all Services to increase uniform security of data.
Measures to ensure availability and resiliency for data and technical operations:
AcuityAds stores data and operates servers in datacenters with robust and redundant power and data storage mechanisms. All deployments are configured with repeatable operating templates, for rapid deployment to a DR region when necessary. All networks are protected by network firewalls, intrusion detection systems, and other industry best practice security measures.
Measures for regular testing, assessment and evaluation:
AcuityAds regularly reviews system activity rated by security threat level by our intrusion detection platform. AcuityAds regularly runs external network scans to ensure operating systems, libraries, and all used software is patched against vulnerabilities. All platform configurations are catalogued within version control and issued via peer-reviewed pull requests to ensure multiple reviewers of each security related change.
Measures for pseudonymization of data:
AcuityAds works with upstream data controllers to ensure no PII enters our system. Any e-mail addresses are hashed prior to ingestion into the platform which would render them as pseudonymous personal data by the time they reach AcuityAds’ systems. Where AcuityAds acts to track activity with cookies, the platform will be disabling inbound traffic to our pixel collection from any IP address that the company determines is coming from the EU.