Version Dated: February 6, 2020
1.1. “Agreement” means the IO together with these Terms.
1.2. “Confidential Information” means information that (a) a party designates as confidential, or (b) under the circumstances surrounding disclosure, a reasonable person would regard as confidential. Confidential Information will not include information that: (i) is in or enters the public domain without breach of the Agreement; (ii) the receiving party receives from a third party who is entitled to disclose such information to receiving party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without reference to the disclosing party’s Confidential Information.
1.3. “Inventory” means the digital ad inventory made available from Publisher to VIZIO under the IO.
1.4. “IO” means the mutually agreed insertion order under which VIZIO may represent the Inventory.
1.5. “Net Advertising Revenue” means the gross revenue recognized and actually received by VIZIO from VIZIO’s sale of Inventory, less ad serving fees and other fees incurred by VIZIO to represent the Inventory, including fees payable to supply side and other ad tech platforms.
1.6. “Publisher” means the entity or individual that is a party to these terms with VIZIO.
1.7. “Terms” means these Terms for the Representation of Digital Ad Inventory.
1.8. “VIZIO” means VIZIO Services, LLC.
2.1. Right to Represent. Publisher hereby grants VIZIO the non-exclusive right to represent the Inventory under each IO. VIZIO may represent the Inventory through programmatic channels (including supply side and other ad tech platforms) and on an impression basis only. VIZIO may represent the Inventory alone or bundled with other digital ad inventory.
2.2. IO Details. From time to time, Publisher and VIZIO may execute IOs. As applicable, each IO will specify: (a) the type(s) and amount(s) of Inventory, (b) either the CPM for such Inventory payable to Publisher (“Publisher CPM”) or the percentage of Net Advertising Revenue payable to Publisher, (c) the start and end dates of the campaign, and (d) any other terms as agreed between the parties. Acceptance of the IO and these Terms will occur upon written (which, unless otherwise specified, will include paper or email communication) approval of the IO by Publisher and VIZIO. Modifications to the originally submitted IO will not be binding unless approved in writing by both Publisher and VIZIO.
2.3. Pricing. VIZIO has complete discretion to negotiate and set pricing and payment terms with respect to the representation of the Inventory.
2.4. No Guarantee. VIZIO does not guarantee the successful sale of any Inventory, including with respect to placements, fill rates, volume of impressions delivered or amounts payable to Publisher. VIZIO will have no obligation to pay for unsold Inventory.
2.5. Technical Integration. VIZIO and Publisher will use commercially reasonable efforts to ensure that the Inventory functions properly with the systems and platforms used by VIZIO to represent the Inventory. VIZIO will supply advertising tags to Publisher for this purpose. The parties will promptly respond to each other for ad serving, fill rate issues, frequency capping (e.g. the same ad appears no more than three (3) times per twenty four (24) hour period per viewer) and any other matter of technical integration. Publisher will make best efforts to ensure that all ad inventory is free of automated, fraudulent or otherwise invalid traffic (“IVT-Free”).
2.6. Reporting. Upon request, VIZIO will make standard reporting available to Publisher. VIZIO’s tracking and reporting of the Inventory will be the controlling measurement used for calculation of payments to Publisher and confirmation of the delivery of the Inventory to VIZIO. Publisher will have five (5) days after receiving VIZIO’s report to notify VIZIO of any suspected discrepancy. At VIZIO’s sole discretion, VIZIO may make reasonable efforts to identify and resolve any discrepancies with Publisher.
2.7. Payment. Within sixty (60) days after the end of each calendar month, VIZIO will provide Publisher with a statement of the number of impressions delivered and the amount payable to Publisher for that month (“Publisher Payment”) together with such payment. VIZIO will be obligated to pay the Publisher Payment solely to the extent of proceeds actually received by VIZIO for impressions delivered in accordance with the IO. VIZIO reserves the right to adjust subsequent amounts payable to Publisher to account for any proceeds that VIZIO must refund or return. Publisher will only be paid on IVT-Free traffic. VIZIO may withhold any payments, or recoup from Publisher payments already made, that are attributable to traffic that is not IVT-Free. Publisher may also, in its sole discretion, suspend or terminate an affected IO at any time if it suspects that any traffic is not IVT-Free. If the deadline for payment would fall on a weekend or holiday date, VIZIO will make the applicable payment(s) to Publisher no later than the first business day immediately preceding such weekend or holiday date. All amounts payable by VIZIO to Publisher are exclusive of taxes. If VIZIO is required by law to withhold any taxes from such payments, VIZIO may withhold such taxes and pay them to the appropriate taxing authorities.
2.8. Marketing. Publisher hereby grants VIZIO the right to list the Publisher properties associated with Inventory in pitch materials to prospective advertisers, to report such properties as being part of VIZIO’s advertising inventory program, and to use Publisher’s trademarks and logos and images of the properties in connection with exercising the foregoing right.
2.9. Confidentiality. Each party agrees to protect the other’s Confidential Information using at least the same degree of care that it uses to protect its own confidential information of similar importance, but no less than a reasonable degree of care. The recipient agrees to use the other’s Confidential Information solely for the purpose of exercising its rights and performing its obligations under the Agreement and agrees not to use the Confidential Information for any other purpose, or for its own or any third party’s benefit, without the express prior written consent of an authorized representative of the disclosing party. The recipient further agrees not to disclose or disseminate the other’s Confidential Information to anyone other than those of its employees, contractors and auditors who have a need to know and who are bound by a written agreement or professional obligation that prohibits unauthorized use or disclosure of the Confidential Information. The recipient may disclose the other’s Confidential Information to the extent required by law, provided that it takes reasonable steps to notify the other of such requirement before disclosing the Confidential Information and to obtain protective treatment of the Confidential Information.
2.11. Indemnity; Limits of Liability. Publisher will defend and indemnify VIZIO and its affiliates from and against any and all third party claims or liabilities that the Inventory or the content surrounding the Inventory violate the intellectual property rights of a third party. In no event will VIZIO or its affiliates be liable for any indirect, special, incidental, punitive or consequential damages of any kind or nature whatsoever, relating to the Agreement or the transactions contemplated hereby, including, without limitation, lost profits or lost goodwill, regardless of whether such party has been advised of the possibility of such damage or if such damage could have been reasonably foreseen. The maximum aggregate liability of VIZIO arising out of the Agreement will be the amount payable to Publisher under the IO.
2.12. Notices. Notices under the Agreement must be in writing and must be sent to the intended recipient by prepaid registered letter or commercial courier (e.g., UPS), at its address specified in the Agreement, as may be changed by a party upon notice. Notices will be effective on the date sent.
2.13. Order of Precedence. Where a conflict or inconsistency exists between the documents concerning the representation of the Inventory, the following descending order of precedence applies: (a) IO, (b) these Terms, or (c) any other agreement between the parties concerning Publisher’s digital ad inventory (such as a Video Programming License Agreement or Internet Applications Platform Agreement).
2.14. Survival. Any provisions that expressly survive termination or expiration, or by their nature ought to survive termination or expiration, will survive, including but not limited to provisions regarding confidentiality, disclaimers, exclusions and limitation of liability, effect of termination, controlling law and jurisdiction, notices and other provisions of interpretation and enforcement.
2.15. Miscellaneous. The Agreement is to be governed and interpreted under the laws of California, without regard to conflicts of laws provisions. The exclusive jurisdiction and venue of any action with respect to the Agreement is the state courts of the State of California for Orange County or the United States District Court for the Central District of California. Neither party will assign any rights under the Agreement by operation of law or otherwise, except that a party may assign the Agreement in its entirety in connection with a merger, acquisition, sale of substantially all its assets, or other recapitalization or reorganization. Any purported assignment in violation of this paragraph is void. If for any reason a court of competent jurisdiction finds any term of the Agreement to be unenforceable, that term will be enforced to the maximum extent permissible to effect the intent of the parties, and the remainder of the Agreement will continue in full force and effect. No waiver of any breach of the Agreement will constitute a waiver of any prior, concurrent or subsequent breach, and no waiver will be effective unless in writing and signed by the waiving party. No amendment to the Agreement will be binding unless in writing and signed by each party. Neither party will be liable for any delay or failure to perform its obligations hereunder due to any cause beyond its reasonable control. The Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party, including because of a party’s drafting or preparing the Agreement. Except as expressly provided, the rights and remedies of the parties under the Agreement are cumulative and are in addition to all other remedies available at law or in equity. The Agreement does not create any rights of enforcement in any person who is not a signatory. The Agreement creates no joint venture, partnership, employment, or agency relationship between the parties. The Agreement is the final, complete and exclusive agreement regarding the subject matter of the Agreement, and supersedes all prior and contemporaneous negotiations and agreements, which are expressly merged into the Agreement.