Total Media Platforms Terms and Conditions
Last Updated on: June, 04 2020
These Total Media Platform Terms and Conditions (“Total Media Platform Terms and Conditions” or the “Terms”) govern Customer’s use of the platform services described in the applicable Order Form. Each Order Form that incorporates these Total Media Platform Terms and Conditions will be a separate agreement.
These Terms are used to govern a number of different Services provided under different types of Order Form. Capitalised terms used but not defined in these Platform Terms may only be applicable to particular Services, and, if applicable, will have the meanings given in the relevant Order Form or Service Specific Terms.
Any use of the term “including” in the Agreement will mean “including, but not limited to.” The following capitalised terms will have the associated meanings for purposes of the Agreement. Any definitions included in these Platform Terms or any related Order Form(s) will have the same meaning throughout the Agreement.
“Ads” means advertising content.
“Affiliate” means, with respect to a party, an entity that directly or indirectly controls, is controlled by or is under common control with such party.
“Beta Feature” means any Service feature that is expressly identified as “Beta”, “Alpha”, “Experimental” or “Pre-Release” or that is otherwise expressly identified as unsupported.
“Brand Features” means each party’s trade names, trademarks, logos and other distinctive brand features.
“Client” means an advertiser, network publisher or other third party, if any, on whose behalf Customer utilizes a Service.
“Company Content” means any content served to End Users through the Target Properties that is not provided by Company and/or Google (including the content of all Ads served via the Services).
“Company Partner” means for Target Properties, (i) the owner (if not Customer) of those Target Properties, (ii) the third party co-branding the Target Properties with Customer, or (iii) the third party for whom Customer is white labeling the Target Properties.
“Confidential Information” means information that one party (or an Affiliate) discloses to the other party under the Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is lawfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.
“Data” means data derived from Customer’s use of the Services.
“Effective Date” has the meaning set out in the Order Form.
“End Users” means individual human end users of a Target Property.
“GDPR” means, as applicable: (a) the EU GDPR; and/or (b) the UK GDPR. “EU 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. “UK GDPR” means the EU GDPR as amended and incorporated into UK law under the UK European Union (Withdrawal) Act 2018, if in force.
“Intellectual Property Rights” means all copyrights, moral rights, patent rights, trademarks, rights in or relating to Confidential Information and any other intellectual property or similar rights (registered or unregistered) throughout the world.
“Order Form” means an order form, schedule or other agreement that is subject to these Total Media Platform Terms and Conditions and sets forth pricing and other terms with respect to a particular Service. All Order Forms incorporate and are governed by the terms and conditions contained herein.
“Personal Data” has the meaning given to it in the GDPR.
“Personally Identifiable Information” means (in the Agreement and any policies incorporated by reference into the Agreement) information that could be used on its own to directly identify, contact or precisely locate an individual.
“Policies” means (i) the Google Platforms Program Policies available at https://support.google.com/platformspolicy; (ii) the Google Ad Manager Partner Guidelines available at https://support.google.com/admanager/answer/9059370; (iii) the Google EU User Consent Policy available at https://www.google.com/about/company/user-consent-policy.html (“EU User Consent Policy”) and; (iv) any other policy and implementation guidelines identified in an applicable Order Form or provided by Company to Customer (in each case, as modified from time to time).
“Service(s)” means the services and products set out in each Order Form.
“Service Fees” means the service, transaction, product and other fees set out in the Order Form(s) or in an applicable user interface for a Service.
Service Specific Terms” means, for each Service, the additional terms and conditions that apply to such Service that are available at the link provided in the applicable Order Form for the Service.
“Subcontractor” means a subcontractor, consultant, third-party service provider or agent engaged by either party (or a Client of such party) in connection with its use or provision of Services.
“Tag” means code (e.g., HTML) or a web beacon (e.g., pixel tag, clear GIF) that requests the delivery of an Ad or tracks an Ad impression or click.
“Target Properties” means properties on which an Ad is served via the Services (i.e., web sites, consent-based email publications, approved software applications or other properties as approved by Company).
“Tax” or “Taxes” means (without limitation) all taxes, duties, levies, imposts, withholdings, social security contributions, sales, use, excise, value-added, goods and services, consumption, other similar taxes or duties, deductions or amounts in the nature of or in respect of taxation.
2. The Parties’ Obligations; Prohibited Acts
2.1 Company will provide the applicable Services described in the Order Form(s) entered into by Customer;
2.2. Customer will:
2.1.1 use the Services in compliance with all applicable Policies (as such Policies may be updated from time to time) and at all times Customer will bear the burden of proof in establishing such compliance;
2.1.2. be liable for its Clients’ acts and omissions in connection with Services provided under the Agreement;
2.1.3. be solely responsible for all use of Services (including, as applicable to the Services described in the Order Form(s), trafficking Ads, implementing Tags, utilisation of Third Party Data Provider Segments sourced by Customer soliciting Target Media, all inquiries relating to Ads, the content of all Ads, obtaining necessary rights and consents for using Data and other content or information provided to Company and/or Google, and the acts and omissions of all Customer Partners and Clients).
2.1.4. obtain all rights necessary to use, and necessary to permit Customer or Company and/or Google, as the case may be, to use the Data under the terms of the Agreement, including from Customer Partners, Target Property owners (if not Customer) End Users and Clients;
2.1.5. use the Services in compliance with all applicable privacy and export laws, rules, regulations and sanctions programs, as well as applicable Internet advertising industry guidelines (e.g., the self-regulatory principles/code of conduct of the Network Advertising Initiative, the Interactive Advertising Bureau and the Digital Advertising Alliance);
2.1.7. use commercially reasonable endeavours to ensure that an End User is provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on the End User’s device in connection with the Services where providing such information or obtaining such consent is required by law.
2.2. Prohibited Acts.
Customer will not, and will not assist or knowingly permit any third party to:
2.2.1 use the Services to process Personally Identifiable Information;
2.2.2. pass information to Company and/or Google that could be used or recognise as Personally Identifiable Information;
2.2.3. misappropriate any part of a Service;
2.2.4. modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect to Services or any part of a Service (except to the extent that such prohibition is not permitted by law);
2.2.5. damage or tamper with any part of a Service;
2.2.6. knowingly breach any Service security measure; or
2.2.7. provide Company and/or Google any Ad that (x) when viewed or clicked on by an End User’s computer, causes such End User’s computer to download any software application, or (y) is illegal.
2.3 In the event that Customer adopted, or will adopt at any time during the Term, ads.txt into any of its domains, Customer is required to simultaneously implement Company’s complete list of ads.txt IDs as provided by Company.
3.1 For each applicable Service, Company will invoice Customer for Service Fees in the month following the calendar month in which the Service Fees are incurred unless there is an unforeseen circumstance where billing may be delayed. Customer will pay Company the Service Fees (other than any Service Fees disputed in good faith) and other invoiced amounts (if any) by the payment due date set forth in Payment Terms (“Payment Due Date”), in the currency and at the exchange rate (if any) specified in the applicable Order Form and by electronic transfer to the account notified to it by Company or such other means expressly agreed to in writing by the parties. Unless otherwise expressly agreed, Service Fees payable under an Order Form are additional to Service Fees payable under other Order Forms.
3.2 Upon 30 days’ prior notice to Customer, Company may, in its sole discretion if Company and/or Google determines that there is any credit risk associated with Customer, require Customer to prepay Company an amount equal to not more than 2 months of reasonably anticipated or actual Service Fees under the applicable Order Form.
3.3 Company may charge interest at a rate of 8% per year above the base rate of Barclays Bank PLC, as updated from time to time, from the date payment is due until the date of actual payment, whether before or after judgment, on any Service Fees which are overdue (other than Service Fees disputed in good faith). Customer will pay reasonable expenses and legal fees Company incurs in collecting late payments not disputed in good faith.
3.4 The Service Fees are exclusive of taxes. Notwithstanding any legal obligation on Customer to withhold any taxes from its payments to Company, Customer agrees to pay to Company a net amount equal to the full amount invoiced. Customer will pay all taxes and other government charges related to or arising from: (i) use of the Services, and (ii) Customer’s obligations under the Agreement (in each case except for taxes on Company’s net income).
3.5 If Customer fails to pay Service Fees invoiced by Company (other than Service Fees disputed in good faith) within 10 days following the Payment Due Date, Company may suspend each applicable Service (for which the Service Fees are overdue) after 10 days’ notice to Customer.
3.6 Notwithstanding any other section in this agreement and/or in the terms and conditions that apply to this agreement, Total Media may suspend any payment due to Customer if it receives notice of any Invalid Activity of Customer from Google Inc. (“Google”) and/or Google has blocked Customer and/or restricted and/or suspended Customer and/or Google has suspended any payment due to Customer and/or Total Media has reason to suspect, at its sole discretion, Invalid Activity, as defined below, of Customer. Invalid Activity shall mean any activity as determined by Google at its sole discretion, whereby Google shall or shall be allowed to, debit, delay, withhold, set off and/or suspend payments to Total Media on behalf of Customer. Without derogating form the generality of the above, Invalid Activity may mean spam, invalid clicks, invalid impressions and so on. Total Media shall provide notice to Customer of any such suspension.
In the event Google shall debit, withhold, suspend, set off, delay and/or deduct any payment to Total Media due to Customer (“Debited Payment”), Total Media shall be entitled, at its sole discretion – (a) to immediately suspend payments to Customer; (b) deduct, offset and/or debit any Debited Payment, if such shall be deducted by Google from payments due to Total Media regarding Customer and/or its activity; (c) receive from Customer immediately upon demand, any payment paid to Customer in excess, taking into consideration the Debited Payment; (d) take any additional action to assure that any payment to Customer is adjusted to reflect the Debited Payment. Customer hereby undertakes to indemnify Total Media and hold it harmless, from any cost, expense and/or payment that Total Media may incur due to Customer activity, including as shall be determined by Google as aforesaid. It is hereby clarified that this undertaking is a material condition to this Agreement. Customer shall provide additional securities in the form of a deposit, charge or personal guarantee to Total Media, to assure the fulfillment of such undertaking if not covered immediately, all regarding Invalid Activity of Customer and/or potential Invalid Activity, as determined by Google and/or Total Media. The books and records of Total Media shall be deemed conclusive evidence of any such expense, cost and/or payment.
This section above shall survive termination of the Agreement.
3.7 In addition to other rights and remedies Company may have, Company may offset the Service Fees payable by Customer under the Agreement against any payment obligations to Customer that Company may incur under the Agreement.
3.8 Any account and related billing and payment information which Customer provides to Company may be shared with third parties solely for the purposes of performing credit checks, effecting payment to Company or servicing Customer’s account.
3.9 If applicable, Customer will not exceed its aggregate credit line as determined by Company in its sole discretion (and made available if requested) and Company will not be obligated to provide any Services in excess of such credit line. Company reserves the right to change or retract any credit line at any time in its sole discretion.
4. Intellectual Property. Except to the extent expressly stated otherwise in the Agreement, neither party will acquire any right, title or interest in any Intellectual Property Rights owned or licensed by the other party.
5. Brand Features. Company and/or Google may use Customer’s Brand Features as necessary for Company and/or Google to provide the Services (e.g., if Customer makes its inventory available on a transparent basis via the Services, Google may display Customer’s Brand Features to advertisers). Other than the limited licence set forth in the preceding sentence, Company and/or Google will not use Customer’s Brand Features (including for marketing and promotional purposes) without Customer’s prior written approval.
The receiving party will not disclose the Confidential Information of the disclosing party, except to: Affiliates; Subcontractors; employees; agents; and/or professional advisors of the receiving party (in each case) who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The receiving party will ensure that those people and entities use the Confidential Information of the disclosing party only to exercise rights and fulfill obligations under the Agreement, and that they keep it confidential. The receiving party may also disclose Confidential Information when required by law after giving reasonable notice to the disclosing party, if permitted by law. For purposes of clarification, Data and the terms and conditions of the Agreement are considered Confidential Information under the Agreement.
7. Representations and Warranties.
Each party warrants that it will use reasonable care and skill in complying with its obligations under the Agreement. Customer represents and warrants that it has all necessary rights and authority to (i) enter into the Terms and each Order Form, (ii) perform its obligations hereunder and thereunder and (iii) act on behalf of any Clients and Company Partners.
No conditions, warranties or other terms apply to any Services or to any other goods or services supplied by Company and/or Google under the Agreement unless expressly set out in the Agreement. Subject to clause 9.1, no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).
9. Beta Features
Subject to Clause 12.1, Google will have no liability under the Agreement (including any indemnification obligations) arising out of or related to any use of Beta Features by Customer, its Affiliates, or its or their Clients or Customer Partners. Any use of Beta Features will be solely at Customer’s own risk and may be subject to additional requirements as specified by Google. Company and/or Google are not obligated to provide support for Beta Features and Company and/or Google may, at its sole discretion, cease providing Beta Features as part of any Services.
10.1. Company will indemnify Customer against all damages and costs finally awarded against Customer in relation to a claim from a third party that the software and other technology used by Google to provide the Services infringes any trademark, trade secret, copyright, or U.S. patent of that third party);
10.2. Customer will indemnify Company, Google and its Affiliates against:
10.2.1 all damages and costs finally awarded against Company and/or Google or any of its Affiliates in relation to a claim filed by an unaffiliated third party before a court or government tribunal: (a) that the creative, technology, data or other materials provided by Customer or any Affiliate of Customer to Company and/or Google or otherwise provided and utilised by Customer or any Affiliate of Customer or any Customer Partner in connection with the Services (“Customer Materials”) infringes any trademark, trade secret, copyright, or U.S. patent of that third party; (b) arising out of or related to (i) any Customer Content, Target Properties or Customer Brand Features; (ii) any use of, or access to, the Services, including Ads, by any Customer Partner; or (iii) claims brought by any Customer Partner against Company and/or Google relating to the implementation or display of Ads on a Customer Partner Target Property or Company’s provision of the Service(s) for such Customer Partner;
10.2.2 Settlement costs in relation to that claim;
10.2.3 reasonable legal fees and disbursements necessarily incurred by Company and/or Google or any of its Affiliates in relation to that claim; and
10.2.4 reasonable costs necessarily incurred by Company and/or Google or any of its Affiliates in complying with Clause 10.3.
10.3. Each party will:
10.3.1. notify the other such claim (each a “Third Party Claim”) promptly after becoming aware of it;
10.3.2. provide the other with reasonable information, assistance and cooperation in responding to and, where applicable, defending that Third Party Claim; and
10.3.3. give the other primary control over the defence and settlement of that Third Party Claim. The indemnified party may join in the defence with counsel of its choice at its own expense.
10.4. The indemnifying party may enter into a settlement only if it: (a) involves only the payment of money damages by the indemnifying party; and (b) includes a complete release of the indemnified party. Any other settlement will be subject to the written consent of the indemnified party (not to be unreasonably withheld or delayed).
10.5. The indemnifying party will have no obligation or liability under this clause 8 in relation to any Third Party Claim arising from:
10.5.1. the indemnified party’s non-compliance with the Agreement;
10.5.2 (where Company and/or Google is the indemnifying party) infringement of any third party’s trademark, trade secret, copyright, or U.S. patent arising from the provision or use of any Customer Materials; or
10.5.3. (where Company and/or Google is the indemnifying party) the combination, operation or use by Customer or any Affiliate Customer of any Services with any product or service not provided by Google.
10.6. If any Services become, or in Google’s reasonable opinion are likely to become, the subject of an intellectual property infringement claim, Company will promptly notify Customer and, at Company’s sole option and expense, may: (a) procure the right to continue providing the Services as contemplated by the Agreement; (b) modify the Services to render them non-infringing (if modification does not adversely affect use of the Services); or (c) replace the Services with functionally equivalent, non-infringing services. If none of the foregoing options is commercially practicable, then each party will have the right to terminate each affected Order Form.
10.7. This clause 8 states the parties’ entire liability and exclusive remedy with respect to infringement of a third party’s intellectual property rights.
11. Limitation of Liability
11.1. Nothing in the Agreement will exclude or limit either party’s liability:
11.1.1. for death or personal injury resulting from the negligence of either party or their servants, agents or employees;
11.1.2. for fraud or fraudulent misrepresentation;
11.1.3. for payment of sums properly due and owing to the other in the course of normal performance of the Agreement; or
11.1.4. for any other liability that may not otherwise lawfully be excluded or limited.
11.2. Subject to Clause 9 (Beta Features), nothing in the Agreement will exclude or limit either party’s liability under the indemnities given under the Agreement, including the indemnities given in Clause 10 (Indemnification) above.
11.3 Subject to Clauses 11.1, Company and/or Google will not have any obligations or liability under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise and including under the indemnities in Clause 10 (Indemnification)) in relation to: (a) the content of Ads; or (b) any websites or content to which such Ads may link.
11.4. Subject to clauses 11.1, 11.2 and 11.3, neither party will be liable under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise) for any:
11.4.1. loss of profit;
11.4.2. loss of anticipated savings;
11.4.3. loss of business opportunity;
11.4.4. loss of or corruption of data; or
11.4.5. indirect or consequential losses, suffered or incurred by the other party (whether or not those losses were within the contemplation of the parties at the date of the Agreement).
11.5. Subject to clauses 11.1, 11.2, 11.3 and 11.4, Company’s aggregate liability (whether in contract, tort (including negligence) or otherwise) for all Claims arising in a one year period starting on the Effective Date or an anniversary of the Effective Date (a “Contract Year”) is limited to 30% of its revenues received by Customer under this Agreement within the 12 months prior to the event giving rise to such liability.
For the purposes of this clause 11.5, “Claim” means any claim, demand, proceeding, action or complaint of any nature or kind under or in connection with this Agreement.
12. Term; Termination; and Suspension
12.1. Term. The term of the Agreement is as set out in an applicable Order Form(s), unless earlier terminated in accordance with the Agreement.
12.2. Unless stated otherwise in the Order Form, an Order Form will automatically renew for successive terms of one (1) year or other term as stated in the Order form, unless: (i) terminated earlier; or (ii) either party gives the other written notice that it does not wish to renew at least sixty (60) days before the date on which the Order Form is due to renew.
12.3.1 Either party may terminate an Order Form upon notice with immediate effect if the other party is in material breach of these Total Media Platform Terms and Conditions or the applicable Order Form (which includes any breach by Customer of Clauses 2.1 or 2.2 of these Total Media Platform Terms and Conditions): (i) where the breach is incapable of remedy; (ii) where the breach is capable of remedy and the party in breach fails to remedy that breach within 30 days after receiving notice from the other party; or; (iii) more than twice even if the previous breaches were remedied.
12.3.2. Company may terminate the Agreement immediately upon notice if child sexual abuse imagery is displayed on any Target Property.
12.3.3. If Company is unable to provide a Service due to any changes in law or regulations, Company may terminate and/or suspend the applicable Service upon notice to Customer.
12.3.4. Company may terminate the Agreement and any related Order Forms immediately in the event of discontinuation in the relationship, material change in business model, material change in any product, feature or resale term between Company and Google. In such event Company will not be obligated to pay any compensation to Customer.
12.3.5 Upon the expiration or termination of the Agreement for any reason: (i) all rights and licences granted by each party will cease immediately; and (ii) if requested, each party will use commercially reasonable endeavours to promptly return to the other party, or destroy and certify the destruction of, all Confidential Information (excluding Data) disclosed to it by the other party.
12.4. Suspension. If Customer or a Customer Partner is in violation (or if Company and/or Google reasonably suspects a violation) of the Terms, then Company may immediately suspend or terminate Customer and/or Customer Partner‘s use of all or any part of the applicable Services.
12.5. Notwithstanding anything stated in any other section of this Agreement or Order Form regarding payment terms, upon termination of the Agreement, any payment (other than payments disputed in good faith) shall become due, and must be paid immediately to Company.
13.1 Assignment. Customer may not assign, pledge or transfer in any other way any of its rights or obligations under the Agreement without the prior written consent of the Company. However, the Company shall have the right to assign its rights and obligations under this Agreement to any third party upon providing the Customer with prior written notice and provided that any such transfer does not have an adverse material effect on the Customer.
13.2 Change of Control. If a party experiences a change of control (for example, through a stock purchase or sale, merger, by operation of law, or other form of corporate transaction): (i) that party will give written notice to the other party within 30 days after the change of control; and (ii) the other party may immediately terminate the Agreement any time between the change of control and 30 days after it receives that written notice.
13.3 Conflicting Terms. If there is a conflict between the Terms and a term of an Order Form, the term of the Order Form will govern.
13.4 Entire Agreement. Subject to Clause 11.1.2, the Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into the Agreement neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in the Agreement.
13.5. Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
13.6. Governing Law. This Agreement and any dispute concerning this Agreement, its subject matter, formation or breach thereof (a “Dispute”) shall be governed by Israeli law and the jurisdiction to hear any Dispute shall reside solely with the courts of Tel-Aviv, Israel. Notwithstanding the above, in any proceeding in which a claim is filed against the Company by Google as a result of any action or omission of the Customer, the Company shall have the right, and the Customer hereby consents, to add the Customer as a defendant to any such proceeding between the Company and Google in Ireland.
13.7 Notices. All notices of termination or breach must be in English, in writing and addressed to the other party’s Legal Department. The address for such notices to Google’s Legal Department is [email protected] All other notices (including notices of non-renewal) must be in English, in writing and addressed to the other party’s primary contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
13.8. No Agency. The Agreement does not create any agency, partnership or joint venture between the parties.
13.9. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.
13.10. No Third Party Beneficiaries. The Agreement does not confer any benefits on any third party unless it expressly states that it does. The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
13.11 Severability. If any term (or part of a term) of the Agreement is invalid, illegal or unenforceable, the rest of the Agreement will remain in effect.
13.12. Approvals. The parties agree that whenever the Agreement calls for written request or written approval to be provided by either party, unless otherwise expressly stated that email is not acceptable, such request or approval may be provided via email.
13.13. Equitable Relief. Nothing in the Agreement will limit a party’s ability to seek equitable relief; except that Customer will not seek, in a proceeding filed during the term or for one year after the term, an injunction or an exclusion order of any of the Services or any portion of the Services based on patent infringement.
13.14. The parties may execute this Agreement and any Order Form in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
13.15. Survival. Notwithstanding termination or expiration of the Agreement, any provisions of the Agreement that by their nature are intended to survive, will survive termination including, but not limited to: 3 (Payments), 4 (Intellectual Property), 6 (Confidentiality), 8 (Disclaimers), 9 (Beta Features), 10 (Indemnification), 11 (Limitation of Liability), and 13 (Miscellaneous).
13.16 No reselling unless expressly permitted. Except as expressly set forth in an Order Form, Customer may not resell any of the Services.
13.17 Conflicting Languages. If the Agreement is translated into any other language, and there is a discrepancy between the English text and the translated text, the English text will govern.