LINQIA, INC. ADDENDUM TO THE AAAA/IAB STANDARD TERMS AND CONDITIONS

LINQIA, INC. ADDENDUM TO THE AAAA/IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS VERSION 3.0

This Addendum to the AAAA/IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS VERSION 3.0 (the “IAB Terms and Conditions”) is entered into and is effective concurrently with the IAB Terms and Conditions and the terms of the applicable Insertion Order (the “IO” and together, the “Agreement”). In the event of any inconsistency between the IAB Terms and Conditions, the IO and this Addendum, the superiority governing the terms and conditions are as follows: first, this Addendum; second, the IO, and third, the IAB Terms and Conditions. References to Sections herein refer to sections of the IAB Terms and Conditions unless stated otherwise. The terms of the IO, along with the IAB Terms and Conditions and this Addendum supersede all terms and conditions previously agreed upon.

Advertiser or Advertiser’s authorized Agency on its behalf and Linqia, agree to be bound by the IAB Terms and Conditions and the IO as amended by this Addendum. All references in the IAB Terms and Conditions to “Media Company” shall mean Linqia.

Advertiser (or Advertiser’s authorized Agency on its behalf, such term being inclusive as referenced herein) acknowledges that Media Company is not a traditional advertising company and is a service provider that provides influencer marketing and related digital media services (“Services”) using an influencer network including automated management platform, tracking and data systems (“Service Platform”), and therefore Sections II(c), II(d), IV(c), VI, and VII of the IAB Terms and Conditions are not applicable and are hereby deleted in their entirety. Sections III(a) and (b) regarding payment terms are subject to the payment terms set forth on each applicable IO.

The parties hereby agreed that the IAB Terms and Conditions are amended as follows:

 

DEFINITIONS.

The following definitions are amended or added as follows:

Ad” means any advertisement provided or Influencer marketing campaign ordered by Agency on behalf of an Advertiser pursuant to an Insertion Order.

Advertising Materials” means artwork, copy, creative elements, and active URLs for Ads provided by Agency or Advertiser.

Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, engagements or other agreed actions) and specifically excludes Posts.

“Influencers” means individuals, groups, or entities who create and distribute content through blogs, social media channels, messages, and/or other online media including Posts provided as part of an Ad conducted through Media Company’s platform and services. This also includes using companies such as Growthoid to help grow their media presence through platforms like Instagram, Facebook, etc.

Media Company Advertising Materials” as defined in Section X(a) shall not include or encompass any Posts or Post Data.

Media Company Properties” means the Service Platform and websites that are owned, operated, or controlled by Media Company.

Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Media Company, but are owned and controlled by Influencers on which Media Company has a contractual right to serve Ads.

“Posts” and “Post Data” means the comments, messages, posts, data, commercial content, text, photographs, images, video, music and all other information or communications transmitted through blogs and other social media channels that are created by the Influencers for a particular Ad.

Site Data” as defined in Section XII(c) shall include the Post Data, which shall be owned by Media Company and licensed according to the terms set forth herein.

Section II. AD PLACEMENT AND POSITIONING

  1. Compliance with IO. The following language is added to clarify the delivery obligations of Media Company.

Unless otherwise specifically indicated in the IO, Media Company delivery will be aggregated over the period of performance and there is no obligation to provide balanced or even delivery over the course of the campaign. All deliverable levels apply to the aggregated performance and delivery may vary over time such that guaranteed delivery, even delivery and make goods are not available except with regard to the full delivery schedule when applicable.

Section V. CANCELLATION AND TERMINATION

  1. Without Cause. Is hereby deleted in its entirety and replace with the following:

All IOs are non-cancelable once executed. IOs may be terminated for convenience by Agency upon written notice, however, the budget allocation for the campaign being terminated shall become due and owing in full if such campaign is terminated after Influencer outreach has commenced or if terminated prior to Influencer outreach 50% of the budget shall be due and paid.

Section XI. LIMITATION OF LIABILITY

Section XI is hereby amended to read in its entirety as follows:

In no event will any party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.

Section XII. NON-DISCLOSURE, DATA OWNERHSIP, PRIVACY AND LAWS

Section XII(i) is hereby added:

License. Advertiser grants to Media Company a non-exclusive, royalty-free, worldwide right and license to use, reproduce, modify, copy, publish, display and distribute Advertiser’s name, logo, trademarks, trade names, service marks and other identifiers set forth on the applicable IO or agreed to by Client (“Licensed Marks”), and any Advertising Materials that may be delivered by Advertiser to Media Company or Influencers, for the purpose of carrying out the terms and obligations of this Agreement, and the contemplated publication, display and distribution of Post Data identified in the IO as part of the campaign hereunder by Media Company and the Influencers (the “License”). Advertiser acknowledges that Media Company may use, perform and display Posts, on occasion, via third-party distribution channels. Notwithstanding anything to the contrary herein, Media Company shall have the right to sublicense the License to participating Influencers and third-party providers (“Permitted Sublicensees”) in connection with the performance of the services and Media Company’s obligations hereunder. Advertiser further acknowledges that certain Posts may continue to exist on the internet after the expiration or termination of this Agreement. Accordingly, the License granted by Advertiser herein shall survive expiration or termination of this Agreement for the Licensed Marks and Advertising Materials that remain displayed in Posts on the Internet. Media Company agrees that Licensed Marks and Advertising Materials are the sole property of Advertiser and agrees it will not contest ownership of the Licensed Marks and Advertising Materials, nor use the Licensed Marks or Advertising Materials for any purpose not related to its performance under this Agreement.

The Parties acknowledge and agree that the copyright, and all other right, title and interest, in and to Posts and the Post Data shall remain with Media Company. Advertiser is hereby granted a non-exclusive, worldwide, royalty free, non-transferable limited right and license, without the right to sublicense (except to affiliates), to publish, display, transmit and distribute, solely in digital form on the Internet only (and specifically excludes television), all or a portion of the Posts commencing upon launch of the applicable Campaign and continuing for a period of twelve (12) months thereafter. Advertiser agrees that it will provide attribution of each Post, or portion thereof, to the applicable Influencer in a manner reasonably agreed to by Media Company. Advertiser agrees that it will not use any Post: (a) for a purpose unrelated to the promotion of the brand identified in the applicable IO; (b) in such a manner as to alter or distort the original content or message of the Post; (c) in a manner that is illegal or unlawful in any way; or (d) in a manner that is false, misleading, or inaccurate.

In the event Media Company specifically grants to Advertiser any other rights, which shall be expressly stated in the applicable IO or separate writing, to any other materials or work product created by Media Company or on its behalf, Media Company shall retain all right, title and interest to all pre-existing work, creations, data, materials (excluding Advertising Materials) and intellectual property (including but not limited to software, applications, systems, processes, inventions, copyrights, patents, trade secrets, trademarks and other proprietary rights, including ideas, concepts and knowhow of Media Company) that existed before the commencement of the services pursuant to the applicable IO or that were created independent of the applicable IO. All rights not expressly granted under this Agreement or other written agreements between the Parties are reserved.

Section XIII. THIRD PARTY AD SERVING AND TRACKING

Notwithstanding anything to the contrary contained in Section XIII of the IAB Terms and Conditions, the following conditions shall apply with respect to tracking (including third party tracking) for all reporting and the billing metrics set forth in the applicable IO.

Media Company will report the applicable supporting analytics to Agency on a weekly basis via email, or will otherwise make available to Agency access to an online reporting tool in order to review analytics information (“Media Company Reporting”). Notwithstanding anything to the contrary herein, all payments relating to campaign performance will be made based on the agreed upon measurement units, pursuant to the applicable Insertion Order, and as determined by Media Company Reporting for CPC and Engagement based campaigns unless explicitly noted in the applicable Insertion Order that the parties agree to Agency’s Third Party reporting through use of Agency’s Third Party Ad Server or Agency’s Third Party AVV which shall be in compliance with these terms (“Third Party Tracking Provider”). With respect to Clicks, Agency acknowledges and agrees that a Click does not guarantee that a visitor will actually arrive at the requested target Landing Page and that a Click will be considered valid even if the target Landing Page is busy or not available. With respect to reach, Media Company cannot track organic social Posts’ reach and accordingly uses standard industry projection models to estimate the campaign’s reach. If the parties have expressly agreed to the use of a Third Party Tracking Provider for performance or billing purposes, as specifically reflected in the applicable Insertion Order, Agency may, at its or their sole cost, use the following Third Party Tracking Providers to measure Clicks: DART (DFA/DoubleClick), Flashtalking and Sizmek. Media Company will not accept any other third-party tracking providers or tracking tags (for example link appendages or masking) and will only accept a raw or direct link to the campaign Landing Page. Media Company shall not be bound by any measurement or reporting provided by any non-preapproved vendor. If a Third Party Tracking Provider is used, then simultaneously with Agency’s delivery of Advertising Materials to Media Company (but in no event later than four (4) business days prior to the scheduled start of the media flight), Agency/Advertiser, will provide Media Company with login credentials/access (or other mutually agreed automated reporting functionality integration) and appropriate associations to the Ad for tracking and reporting purposes (including for Media Company to generate reports necessary to comply with the foregoing reporting requirement) and Agency/Advertiser will use commercially reasonable efforts to ensure the Third-party Ad Server’s system generates accurate, complete and up-to-date reports. Agency’s or Advertiser’s failure to comply with the foregoing shall release Media Company from any make good or other similar obligations. If Agency fails to provide Media Company with access to Agency’s server, Media Company will bill Agency and Agency agrees to pay based solely on Media Company’s measurement. Other than Media Company’s measurements, only the measurements by the Third Party Tracking Provider specified in the Insertion Order will be permitted for billing purposes.