Terms & Conditions for CitrusAd™ Digital Media Program Marketing Services
Version 1.0 Effective on and from 1st April 2020
These Terms & Conditions (“T&Cs”) apply to and are incorporated within the Marketing Services Agreement (“MSA”) entered into between Citrus Ad International, Inc. (“CitrusAd”) and a subscribing Retailer (“Retailer”) for Digital Media Program marketing services (the “Services”), Retailer and CitrusAd collectively the “Parties,” and each of them a “Party.”
1.Scope of Services. The Services to be provided by CitrusAd shall consist of the following, unless otherwise stated in the MSA:
1.1 Designing programs which allow brand owners (“Advertisers”) and their representatives (“Agencies”) to advertise by way of Retailer’s “Properties” (websites, mobile applications, email systems, or external digital media properties), including display ads, sponsored product ads, emails, brand pages, social media, and audience extension (“Digital Media Programs”), in conjunction with technology platforms chosen by or acceptable to Retailer.
1.2 Solicitation of Advertisers and Agencies for Retailer’s Digital Media Programs.
1.3 Signing Digital Media Program contracts with Advertisers and Agencies as Retailer’s agent, using a form of contract approved by Retailer but which is expected generally to be compliant with Interactive Advertising Bureau (IAB) standards (Versions 2 or 3).
1.4 Determining the prices to charge Advertisers and Agencies under their Digital Media Program contracts.
1.5 Development and hosting of landing pages and other aspects of sponsored ads.
1.6 Consulting services to support onboarding Advertisers and Agencies for Retailer’s Digital Media Programs.
1.7 Reporting to Retailer regularly on metrics as determined by written agreement between Retailer and CitrusAd, such as the number of viewer visits to Retailer’s URLs, the number and kinds of ads generated in response, and the unit and dollar volume. of Retailer’s online sales made during the visits.
1.8 Enforcement of Digital Media Program contracts, including collections from Advertisers and Agencies and contract termination, as CitrusAd deems advisable and cost-effective in its discretion.
1.9 Such other duties as Retailer and CitrusAd agree upon in writing (which may be accomplished by email correspondence between their respective “Primary Project Contacts” named in their MSA.
2. Retailer’s Duty of Cooperation.
2.1 Retailer shall be solely responsible for posting on its Properties all privacy-related and other notices required by applicable law to be given to viewers.
2.2 Retailer shall promptly inform CitrusAd of changes and additions to Retailer’s URLs.
2.3 Retailer shall permit and facilitate such access to each of its Properties’ infrastructure, ad-serving platform, ad server log-files (including user ID, specific URL page, and time stamp), and application program interfaces or APIs, and such assistance from Retailer’s personnel and technology contractors, as CitrusAd and its technology business associates reasonably request from time to time in order to perform CitrusAd’s duties. However, Retailer shall not provide CitrusAd or its agents with access to any “Personal Information” or “Probabilistic Identifier” as defined by the California Consumer Privacy Act (“CCPA”), at Cal. Civil Code §1798.140(o) and (p), as though the CCPA applied to all Consumers, wherever they reside.
2.4 Retailer shall use commercially reasonable measures to ensure the uninterrupted availability of its chosen technology platforms to facilitate ad generation as called for by the Digital Media Program contracts, except for reasonably planned system maintenance.
3. Compensation and Expenses.
3.1 Retailer and CitrusAd shall divide, in the proportions agreed upon in the MSA, all payments made by Advertisers and Agencies under Digital Media Program contracts entered into by CitrusAd as Retailer’s agent after deducting costs reasonably incurred by CitrusAd for its performance that are approved in advance by Retailer (such approval not to be unreasonably withheld), including technology and external media costs paid to third parties and data storage costs (“Net Advertising Payments”).
3.2 Notwithstanding the above, CitrusAd shall retain all revenue arising from creative and other services it performs or procures for Advertisers and Agencies under separate contract but which are usable in connection with Digital Media Programs, such as authoring advertising text or images, developing brand websites or landing pages, and writing computer programs to accomplish various tasks. Similar work for Retailer shall also be by separate contract.
3.3 Ownership and Licenses for Intellectual Property.
4. Ownership and Licenses for Intellectual Property.
4.1 “Intellectual Property” means all copyrights, patents and rights to obtain patents, trade secret rights, trademark and service mark rights, rights of integrity and attribution, mask work rights, industrial rights, and other intellectual property rights in all computer programs, presentations, audiovisual works, advertising text, photographs, graphics, and other works, and in all technology solutions plans, know how, methods, inventions, discoveries, machines, processes, improvements, items of manufacture, compositions of matter, and designs.
4.2 Retailer grants CitrusAd and its agents a nonexclusive, royalty-free, worldwide nontransferable (except as stated below) license during the term of the MSA to use Retailer’s trademarks, APIs, and other Intellectual Property and tangible property to which CitrusAd or its agents reasonably require access for their performance of the Services. CitrusAd’s agents must be approved by Retailer for such licenses and access (approval not to be unreasonably withheld), except that the following organizations are hereby preapproved: AppNexus, Facebook, Factual, Index Exchange, Integral Ad Science, Information Resources Incorporated, LiveIntent, LiveRamp, MOAT, The Nielsen Corporation, and Rubicon Project.
4.3 CitrusAd grants Retailer a nonexclusive, royalty-free, worldwide, nontransferable (except as stated below) license during the term of the MSA to use CitrusAd’s tangible property and Intellectual Property to the extent reasonably necessary to obtain the benefit of CitrusAd’s performance contemplated by the MSA.
4.4 Subject to the above-granted licenses, Retailer and CitrusAd shall each own all Intellectual Property authored, invented, created, conceived, or reduced to practice by such Party or its agents respectively, whether preexisting, developed in connection with performing the Services, or otherwise developed at any time or place, whether alone or jointly with other persons, and all tangible media to the extent containing or reflecting any of the foregoing, except that for Intellectual Property developed by Retailer or its agents and CitrusAd or its agents collaboratively, they shall each have any rights as joint authors or joint inventors as applicable law provides, but they hereby grant one another and their respective Affiliates at least a perpetual, nonexclusive, royalty-free, worldwide license to use, display, and otherwise exploit for profit such collaboratively-developed Intellectual Property, without sharing the resulting remuneration with one another.
5.1 Retailer and CitrusAd will not use for any purpose except as reasonably necessary for performance of the MSA, and will not disclose to any persons or entities except their respective employees, agents, accountants, consultants, and attorneys, or those of companies under common ownership or control with them (“Affiliates”), who have a reasonable need to know in connection with the Services and are under obligations comparable to this paragraph, any Confidential Information of the other Party or its Affiliates, for as long as applicable law allows the above obligations to apply or until an exception applies, below.
5.2 "Confidential Information" of a Party means Retailer Data it supplies or makes accessible to the other Party, the financial terms and custom specifications for work under the MSA, work product it provides under the MSA, its business plans or sales information, the identities of its employees, the Intellectual Property of the Party or its suppliers, and such other information as the Party designates as confidential in its written communications to the other Party, except that Confidential Information does not include information the Party routinely discloses to other persons without confidentiality protections in place, information the other Party shows that it or its agents developed independently of and without reliance upon or use of the other Party’s Confidential Information, information disclosed to the other Party directly or indirectly by a person not reasonably suspected by the other Party of having a duty to refrain from such disclosure (until such time as it reasonably should know), and information entering the public domain through no breach of duties by the other Party and without there remaining a duty for users generally to compensate the information’s owner or its Affiliates.
5.3 “Retailer Data” means (a) information comprising orders, requests, digital identifiers (including a unique online or digital identifier for a device), internet protocol addresses, and payment methods; (b) information about visits to and views of Retailer’s Properties; and (c) any other fields of information provided to or able to be determined by CitrusAd in relation to Retailer, in non-personally-identifiable or aggregated form.
5.4 If a Party is asked or directed by a governmental body or tribunal to disclose Confidential Information of the other Party, it shall give such other Party reasonable advance notice so that the other Party may contest the disclosure or seek a protective order.
5.5 Each Party shall promptly after termination of the MSA for any reason return to the other Party or destroy all copies (electronic or hardcopy) containing the other Party’s Confidential Information or Intellectual Property, except each Party may retain two (2) archival copies securely for the purpose of addressing any potential controversies regarding same.
6. Warranties, Indemnification and Limitation of Liability.
6.1 Each Party warrants and covenants that to the best of its actual knowledge it has the lawful right to grant the licenses it purports to grant hereunder, that it will not violate the restrictions on the licenses granted to it hereunder, and that it will comply with all foreign, federal, state and local laws applicable to its conduct or omissions (including but not limited to those involving privacy and defamation).
6.2 CitrusAd warrants that it will use commercially reasonable efforts, in consultation with Retailer, to provide the Services in accordance with any agreed-upon written specifications.
6.3 Except as expressly stated above, and to the maximum extent allowed by applicable law, Retailer AGREES THAT THE SERVICES ARE PROVIDED "AS IS," WITHOUT ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR COVENANTS WHAT-SOEVER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FREEDOM FROM INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, TRADE USAGE, OR OTHERWISE.
6.4 Subject to the limitations of liability below, each Party shall indemnify and hold harmless the other Party, such other Party’s agents, and such other Party’s Affiliates and their agents, from and against any and all liabilities, damages, claims, suits, judgments, costs and expenses (including reasonable attorneys’ and experts’ fees), directly or indirectly incurred as a result of the Party’s breach of the MSA, these T&Cs, or any applicable law, or of any claims by third parties or governmental agencies alleging such a breach, provided the indemnifying Party, if it reasonably shows it has the economic wherewithal to pay any judgment, is given complete authority over the defence or settlement thereof (other than for injunctive relief against the indemnified Party).
6.5 NOTWITHSTANDING ANY OTHER TERM OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL CitrusAd, ITS AGENTS, ITS AFFILIATES OR ITS AFFILIATES’ AGENTS BE LIABLE TO Retailer, Retailer’s AGENTS, Retailer’s AFFILIATES, Retailer’s AFFILIATES’ AGENTS, OR ANY THIRD PARTY FOR ANY ACTUAL DAMAGES IN EXCESS OF THE LESSER OF (A) ONE (1) YEAR’S WORTH OF CitrusAd’s SHARE OF NET ADVERTISING PAYMENTS FROM THE ADVERTISERS OR AGENCIES WITH RESPECT TO WHOM A LIABILITY ATTACHES, OR (B) USD $100,000, FOR ALL DAMAGES AND ALL RESPONSIBLE ENTITIES IN AGGREGATE, NOR FOR ANY INDIRECT, SPECIAL, RELIANCE, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF REVENUES, BUSINESS INTERRUPTION, ATTORNEYS’ AND CONSULTANTS’ FEES, LITIGATION COSTS, OR THIRD PARTY CLAIMS), HOWSOEVER CAUSED, IN CONNECTION WITH OR RELATING TO THE MARKETING SERVICES AGREEMENT, ANY SERVICES PERFORMED OR OMITTED TO BE PERFORMED, ANY BREACH OF REPRESENTATIONS OR WARRANTIES, OR OTHERWISE, WHETHER ARISING OUT OF CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND, TO THE EXTENT ALLOWED BY LAW, INTENTIONAL TORTS), STATUTORY OR REGULATORY VIOLATIONS, OR OTHERWISE, EVEN IF CitrusAd OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE.
6.6 Retailer agrees and acknowledges that the provisions of this Section 6 are essential to CitrusAd’s ability to provide the Services at the price reflected in the MSA.
7. Miscellaneous. The MSA, these T&Cs, their interpretation, and all controversies arising under or relating to them, shall be governed by the laws of the State of Illinois and determined in federal or state courts serving Chicago, Illinois, regardless of the conflicts of laws rules of any forum. The Parties waive, and hereby agree to exclude, application of the United Nations Convention on Contracts for the International Sale of Goods to the MSA and the transactions contemplated thereby. The Parties may not assign or transfer the MSA or rights (including licenses) thereunder without the prior written consent of the other Party, except to a successor to substantially all the assets or ownership of the Party or the line of its business to which the MSA relates. The MSA shall not constitute or give rise to a partnership or joint venture between the Parties. Neither Party shall be liable or in default of the MSA for any delay, Service interruption or other failure to perform due to a circumstance beyond the commercially reasonable control of that Party, including but not limited to strikes and lockouts, natural disasters, public health crises, governmental orders, acts of war, insurrection, crime, terrorism, power outages, failure of telecommunications facilities or computer equipment, or failures of personnel, equipment or facilities under the control of the other Party or its agents. The MSA and any documents incorporated therein by reference constitute the entire agreement and understanding between the Parties regarding the subject matter of the MSA and supersede and merges all prior discussions and agreements between them relating to that subject matter. Neither Party has relied upon any promise, condition, or representation not stated explicitly in the MSA (including these T&Cs) in deciding to enter into it. No modification or amendment to the MSA shall be valid unless in writing and signed by an authorized representative of each of the Parties. If any provision of the MSA (including these T&Cs) is held invalid or unenforceable by a tribunal of competent jurisdiction, the remaining provisions shall be unaffected, and the offending provision shall be severed except that it shall be deemed modified, reformed, or “blue-penciled” by the minimum necessary to render it valid and enforceable, as determined by the tribunal. Sections 3, 4, 5, 6 and 7 hereof shall survive the MSA’s termination for any reason. Each Party shall be entitled to preliminary and permanent injunctive relief and specific performance as well as damages, without posting bond, to enforce Sections 2, 4 and 5 and the restrictions on licenses granted hereunder. Each Party shall execute such additional documents and take such additional actions as the other Party may reasonably request to better ensure that the intentions expressed in the MSA (including these T&Cs) are carried out, that ownership of Intellectual Property is allocated as set forth above, and that any other rights granted or retained thereunder are perfected.
8. Changes to Terms & Conditions.
These T&Cs may be changed from time to time by emailed notice from CitrusAd, which will be deemed acceptable to Retailer if it does not express disagreement by return email to its CitrusAd Primary Project Contact within 14 days after such notice. Changes will not take effect as to an objecting Retailer already under contract without further agreement.