OAO EB TERMS AND CONDITIONS
These OAO EB Terms and Conditions (the “Terms”) govern, together with the terms and conditions of the Google Ad Manager Addendum (the “Addendum”), Company’s use of the EB Service. Capitalized terms used herein and not otherwise defined in these Terms shall have the meanings ascribed to them in the Addendum.
As part of the EB Service, OAO will be programming advertising campaigns (the “Campaigns”) into Company’s online advertising system or via other advertising delivery methods (the “Ad System”) that will run on sites (including, without limitation, web sites and mobile and other electronic or digital applications or media) owned or operated by Company (the “Company’s Sites”). The Campaigns are intended to utilize Company’s advertising inventory (the “Inventory”) available on the Company’s Sites. Campaigns programmed using the EB Service to run on the Company’s Sites via Company’s Ad System (a) may be provided by third parties, or (b) managed and optimized using various programs, technologies, reports and services (collectively, the “Technologies” and individually, a “Technology”) provided by third parties (the parties referred to in clauses (a) and (b) of this paragraph are collectively referred to as the “Third Parties” and individually, as a “Third Party”) with whom either OAO has entered into separate agreements or with whom Google has a direct agreement (collectively, the “Third Party Agreements” and individually, a “Third Party Agreement”).
OAO may also provide either directly or through Third Parties additional services (the “Additional Ad System Technology Services”), which may include enhanced targeting and bidding capabilities to facilitate the purchase by an Advertiser (as hereinafter defined) of Company’s Inventory. “Advertiser” means any party engaged in purchasing, creating, placing, or utilizing any advertising content on the Company’s Sites, including, without limitation, direct advertisers, agencies, ad networks, ad exchanges and ad servers. OAO and the Third Parties may identify, select, and add advertising content and Advertiser Tags (hereinafter defined) to the Technologies to run via the EB Service. An “Advertiser Tag” is the coding which serves an Advertiser’s advertisements. Company acknowledges and understands that the use of the Technologies by OAO and Company and the provision of the Additional Ad System Technology Services are subject to terms and conditions set forth in the Third Party Agreements, the Addendum and these Terms.
Company acknowledges that the use of the Technologies is subject to the following restrictions:
A. Except as otherwise expressly provided herein, the Technologies and any associated services provided by a Third Party pursuant to a Third Party Agreement shall be used or accessed only by OAO or Google.
B. Except as expressly provided in the Addendum or these Terms, the Technologies or any associated services shall not be used to process data on behalf of any other person or entity prior to OAO receiving notification of approval from the applicable Third Party, which may be withheld, conditioned or delayed in such Third Party’s sole discretion.
C. With respect to any Campaigns or other use of any Technology, Company will not, and will not knowingly or negligently allow any third party to (a) modify, obscure or prevent the display of all, or any part of, any Campaigns; (b) implement any click tracking or other monitoring of Campaigns; (c) display any Campaigns in pop-ups, pop-unders or other similar methods or by any other means; (d) interfere with the display of or frame any Company’s Sites or any page accessed by clicking on any Campaigns; (e) display any content between any Campaigns and any page accessed by clicking on those Campaigns; (f) directly or indirectly (i) offer incentives to or otherwise allow or require end users of the Company’s Sites to generate queries or impressions of or clicks on Campaigns through any automated, deceptive, fraudulent or other means (including, without limitation, click spam, robots, macro programs and Internet agents), or (ii) generate or modify impressions or clicks on Campaigns or perform or allow any other actions that are tracked and may serve as a basis for payment or analysis with respect to any Campaigns; (g) “crawl,” “spider,” index or in any non-transitory manner store or cache information obtained from the use of the Technologies; (h) engage in any misleading, fraudulent or deceptive conduct or pass incomplete or incorrect information or data with respect to Inventory; (i) engage in any commercial SMS/text messaging; (j) set, read, write, modify, or delete any cookie on any Third Party domain or use the Technology to modify cookies on any domain not owned, operated or controlled by Company or otherwise have authorization to modify; (k) collect or use data provided by, from, or related to a third-party purchaser of Inventory or advertiser for purposes of re-targeting, creating, supplementing or amending user or Inventory profiles, or amending interest categories, or syndication or other distribution to third parties, unless such data collection and usage are authorized by or on behalf of the applicable third party; (l) disclose third-party purchaser availability, volume, bidding, or pricing data obtained through use of the Technology with the written consent of such purchaser, except in connection with reporting of a Campaign; or (m) interfere or attempt to interfere with the proper working of the Technology or any third-party’s use thereof.
The Third Party Agreements grant the right to OAO and Google to use the Technologies. However, all right, title and interest in and to the Technologies remains with and belongs exclusively to the Third Party who provided such Technology. Company acknowledges and understands that the EB Service and the Technologies being utilized within the EB Service are proprietary products and any and all intellectual property rights and other proprietary interests related thereto, together with all future enhancements, improvements and additions, are owned exclusively by Google or the Third Parties. Company shall not: (i) have any right to use (except as expressly provided in the Addendum or these Terms) or access or disclose the EB Service (or any component thereof) or any Technology to any person or entity; (ii) alter, enhance, modify in any manner, or make derivative works, in whole or in part, of the EB Service or any Technology; (iii) promote any software piracy systems, hacking, emulators or similar activities, or copy, distribute, reproduce, reverse engineer, reverse assemble, disassemble, decipher, or otherwise decompile or deconstruct the EB Service or any Technology or attempt to gain unauthorized access to the EB Service or any Technology or its respective related systems or networks for any purpose; (iv) use or attempt to use the EB Service or any Technology in contravention of Company’s or Google’s privacy or other service policy or any federal, state, local, foreign, or other applicable law, rules, or regulations of any governmental, regulatory or administrative organization; (v) interfere with or disrupt the integrity or performance of the EB Service or any Technology or the data contained therein (including, without limitation, blocking any safety detection methods), or introduce into the EB Service or any Technology any virus or other code or routine intended to disrupt or damage the EB Service or such Technology or alter, damage or delete any information contained therein; (vi) license, sublicense, sell, resell, rent, lease, lend, transfer, assign, distribute, time share or otherwise commercially exploit or make the EB Service or the Technologies available to any third party without the prior written consent of OAO; (vii) otherwise act in an unlawful, fraudulent, malicious, or negligent manner when utilizing the EB Service or any Technology; (viii) pass, assist or knowingly permit any person to pass, information to OAO, Google or any Third Party that OAO, Google or a Third Party could use or recognize as personally identifiable information or which is deemed sensitive by any applicable Privacy Requirements (as hereinafter defined); (ix) modify, remove, or obscure any proprietary notices or legends of any Third Party that appear in connection with the use of the Technologies; (x) create or attempt to create a substitute or similar technology through use of or access to any of the Technologies or proprietary information related thereto; or (xi) use the Technology in violation of any published policies of the Third Party. Company assumes full responsibility for any use of the EB Service and the Technologies by any of its employees, whether or not such parties are actually authorized by Company to use the EB Service and the Technologies, and for ensuring that all such users abide by and comply with these Terms and the terms of the Addendum. Company further agrees that it shall not access or use or attempt to access or use the EB Service or the Technologies by means of any automated program, expert system, electronic agent, or "bot."
In the event Company sends any Campaign request directly to any Third Party through a server-to-server connection, Company is responsible for including in the request, where applicable, notification that an end user (i) has opted out of or otherwise disabled behavioral tracking preferences through the end user’s device or browser, including but not limited to “Do Not Track” in Internet browsers, “Limit Ad Tracking” in iOS devices, and “Opt Out of Interest-Based Ads” in Android devices, and/or (ii) is located within the European Economic Area (“EEA”). If OAO is delivering the Campaign request to the Third Party on behalf of Company, Company shall ensure that the Third Party is provided with the information required by this paragraph.
Company further acknowledges that while a Third Party will not own the data Third Party or Company collects from end users (the “Data”), the Third Party may: (i) capture and maintain the Data in connection with the use of the Technology and the associated services and enforcement of the Third Party’s rights under the Third Party Agreement; (ii) compile, use and disclose aggregated statistics including the Data along with data of other Third Party customers for internal or marketing use (provided that no such use shall include any information that can identify OAO or the Company or any end user of the Company); and (iii) disclose any Data if required by law or valid order of a court or other governmental authority. Company understands and acknowledges that OAO has no control over the content of the Data and OAO shall have no liability or responsibility for the disclosure of any personally-identifiable information of any of Company’s end users. Company represents and warrants that Company will not transfer or transmit any personally identifiable information about an end user to OAO, Google or any Third Party.
Company acknowledges and understands that OAO, Google or a Third Party may (a) identify Company in connection with securing Campaigns to run within such Third Party’s Technology and (b) share with Advertisers Company’s Sites site-specific statistics, the Company’s Sites URLs and related information collected by the Third Party through the provision of the Technology.
Company’s use of the Technologies is at all times contingent upon Company’s payment of applicable fees pursuant to the Services Agreement and the Addendum. Company shall be solely responsible for any sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of Company’s use of the Technologies. Company shall also be liable to OAO or Google for any fees and expenses incurred by OAO or Google to a Third Party resulting from any breach by Company of the Addendum, these Terms or the use of the Technology in violation of the terms prescribed by the Third Party (including, without limitation, a violation of any on-line published policy of the Third Party). The identity of the Third Parties whose Technologies are being used by Company are set forth in the reports available to Company and the policies of the Third Parties (available on the Third Parties’ web sites) should be reviewed by Company on a periodic basis.
Company represents, warrants, and covenants that any data (including, without limitation, advertisements) furnished by Company to OAO and the Company’s Sites utilized in connection with the EB Service or the Technologies do not and shall not contain any content, material, advertising or services that violates any applicable law or regulation or any published policy of a Third Party whose Technology is used by Company, or infringes upon any right of any person, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right, will not be personal web pages or blank pages with no content, and that such data and the Company’s Sites will not contain any content that (i) promotes violence, the use of firearms or other weapons, or illegal activities (e.g., discrimination, hate speech, copyright circumvention), (ii) may be harmful, abusive, threatening, defamatory, libelous, deceptive, pornographic, obscene or sexually explicit, (iii) references alcohol, tobacco or gambling or promotes the use of illegal substances, (iv) contains spyware, viruses or other potential harmful code, or (v) promotes activities generally understood as Internet abuse. Company also represents and warrants that Company is and will at all relevant times be in compliance with all applicable laws, regulations, court or government agency orders, decrees and policies (collectively, “Laws”), including, without limitation, the Children’s Online Privacy Protection Act of 1998, as amended (“COPPA”), and shall (x) identify to OAO the Sites as having children’s or non-children’s content and (y) promptly notify OAO if any of the Sites collect any personal information (as defined by the Laws applicable to advertisements to children (as the term “children” is defined in such applicable Laws)) from children or if Company’s policy on data collection, use or disclosure from children changes. Notwithstanding the foregoing, Company agrees that without the prior written approval of OAO, Company shall not run Campaigns using any Technology provided pursuant to the Addendum, on any of Company’s Sites where such Campaigns are directed to children (i) under the age of thirteen (13) who reside in the United States or any territory thereof, or (ii) under the age of sixteen (16) who reside in the EEA, as determined by the laws of each country in the EEA, or (ii) under the age specified by the laws of any other applicable jurisdiction.
In addition to any indemnities set forth in the Addendum and the Services Agreement, Company will defend, indemnify and hold harmless OAO and any Third Party and their respective members, officers, directors, employees and agents (collectively, the “Indemnitees”), from and against any and all claims, liabilities, damages, costs and expenses (including, but not limited to, settlement costs and reasonable attorneys' fees) arising out of any claim of any third party resulting from (i) Company’s breach or alleged breach of any representation, warranty, covenant, term or condition set forth in these Terms, (ii) any use of any Technology by Company (either directly or through OAO pursuant to the Addendum or these Terms), its authorized representatives or by any entity or individual using the user identifier and password, if any, provided to Company by OAO or a Third Party, which use is in violation of these Terms or the terms of the Services Agreement or in a manner not prescribed by OAO or such Third Party (including, without limitation, the failure by Company to secure all rights, title and interest required to display or promote any Campaigns, the violation of any intellectual property rights of any person, arising from any Campaigns provided by Company, or arising from any violation by Company of any published policies of a Third Party whose Technology is used by Company), or (iii) the Company’s Sites which is not attributable to the Third Party. OAO shall promptly notify Company of any such claim and Company shall have the sole and exclusive authority to defend and/or settle any such claim; provided, however, that OAO or such Third Party may, at its own expense, assist in the defense if it so chooses, and no settlement intended to bind OAO or Third Party and which requires an Indemnitee to admit liability or to pay any money shall be final without OAO’s or such Third Party’s written consent. OAO and/or a Third Party, as the case may be, shall reasonably cooperate with Company in connection with any such claim.
The Technologies shall be deemed to constitute Confidential Information for purposes of the Services Agreement. In addition, Company will not make any public announcement regarding the existence of the Third Party Agreements, these Terms or the terms and conditions of the Addendum without the prior written consent of OAO.
Disclaimer AND LIMITATION OF LIABILITY: THE TECHNOLOGIES ARE PROVIDED “AS IS" AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NEITHER OAO NOR ANY THIRD PARTY MAKES ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT USE OF, ACCESS TO OR OPERATION OF THE TECHNOLOGIES WILL BE UNINTERRUPTED OR ERROR FREE, AND THAT DATA TRANSMITTED USING THE TECHNOLOGIES WILL NOT BE IRRETRIEVABLY LOST. COMPANY SHALL BE SOLELY RESPONSIBLE FOR MAINTAINING BACK-UP COPIES OF ANY DATA PROVIDED BY COMPANY FOR USE IN OR IN CONJUNCTION THE EB SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT TO THE EXTENT ARISING OUT OF INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY, IN NO EVENT WILL OAO OR ANY THIRD PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE ADDENDUM (INCLUDING THESE TERMS), HOWEVER CAUSED AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY), EVEN IF OAO OR SUCH THIRD PARTY OR COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER OAO NOR ANY THIRD PARTY SHALL HAVE ANY LIABILITY FOR ANY LOSS OF DATA OR FOR ANY LOSSES RESULTING FROM UNAUTHORIZED ACCESS TO THE TECHNOLOGIES. WITHOUT LIMITING ANY OF THE FOREGOING, OAO MAKES NO EXPRESS OR IMPLIED GUARANTEES, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE REVENUE TO BE GENERATED OR PLACEMENT OF ADVERTISEMENTS FROM USING THE TECHNOLOGIES HEREUNDER.
Company understands that use of a Technology may be terminated at any time by OAO or the Third Party who owns such Technology. In addition, OAO may terminate Company’s right to access and use the Technologies if Company breaches any of these Terms or the terms and conditions of the Addendum or the Services Agreement. OAO reserves the right to modify, amend and supplement (collectively, “Modifications”) these Terms at any time without prior notice to Company. Any Modifications will not apply retroactively but will become effective twenty (20) days after they are posted unless otherwise provided in the Modifications. Company's continued use of the OAO Alpha Service and any Technology after such period shall constitute Company's acceptance of such Modifications.
Last Updated: January 25, 2019