These Standard Terms and Conditions are entered into between Outbrain Inc. ("Outbrain") and the party executing the Insertion Order ("Customer", including any brokers or agents acting on Customer's behalf) and shall be incorporated into each Insertion Order ("IO") entered into by and between Outbrain and Customer on and after the date hereof. Each IO, together with these Standard Terms and Conditions, shall be collectively referred to as the "Agreement." In the event of any inconsistency between the terms of an accepted IO and these Standard Terms and Conditions, the terms of these Standard Terms and Conditions shall prevail unless the IO specifically sets forth otherwise.
1.1 Subject to the terms and conditions of the Agreement and the applicable IO, Outbrain shall deliver Audience (as hereinafter defined), in the amount set forth in the applicable IO, to editorial content selected by Customer (the "Content") and delivered through Outbrain's service. A link to the Content shall appear as a sponsored recommendation on the website of publishers selected by Outbrain who have agreed to participate in Outbrain's service. Outbrain shall provide functionality to allow Customer to track and verify delivery of Audience to the Content. For purposes of this agreement, "Audience" shall be defined as unique viewers of Content delivered through the Outbrain service.
2. Delivery of Audience to Content.
2.1 Content selected by Customer shall be subject to Outbrain's approval and must comply with Outbrain's content guidelines as such guidelines may be updated from time to time by Outbrain. Customer acknowledges that Outbrain is not responsible for the Content and that the Content may change during the course of a campaign due to revisions by the Content's author, comments from readers, or otherwise. Customer's recourse in the event of such change shall be to direct Outbrain to remove such Content from its then-current campaign, redirect remaining Audience to previously-approved Content or select new Content (also subject to Outbrain's approval and editorial discretion). Customer further acknowledges that, in the event of an objection from a Content author or publisher, Outbrain shall cease delivering Audience to the Content and shall assist Customer in selecting new Content for the Campaign. Customer represents and warrants that if the Content selected for use in a Campaign was written by or under the direction of Customer, or paid for by Customer, that fact shall be clearly disclosed in the Content. Customer is solely responsible for determining the propriety and legality of its sponsorship of the Content. for determining the propriety and legality of its sponsorship of the Content.
2.2 Customer shall not, directly or indirectly, provide a link from the Content to any of the following types of sites: (i) obscene, defamatory, libelous, slanderous, pornographic, violent, profane, indecent or unlawful; (ii) sites that are factually inaccurate, misleading or deceptive; (iii) sites that facilitate or promote any type of illegal activity, including without limitation pyramid schemes, gambling, the sale or use of illicit drugs, or discrimination or harassment of any individual or group; or (iv) sites that promote services competitive to those of Outbrain or that may otherwise damage the goodwill and reputation of Outbrain, as determined by Outbrain in its sole discretion.
2.3 Customer grants to Outbrain a non-exclusive, royalty-free license to use Customer's trademarks to fulfill the terms of any Insertion Order, including the facilitation of identification of the sponsored Content.
3. Term; Cancellation.
3.1 The term of each IO will be determined by the start and end date listed on each IO. However, each Insertion Order may be cancelled by either party for any reason upon thirty (30) days' written notice to the other party. During such thirty day notice period, all previously contracted campaigns shall continue to run pursuant to the terms of the applicable IO and Customer shall be responsible for paying Outbrain for all Audience delivered to Content during such notice period.
4. Outbrain Self Serve
Advertisers using Outbrain Self Serve shall have the ability to manage certain aspects of their campaign using Outbrain's dashboard. Advertisers using Self Serve shall be solely responsible for all changes to the applicable campaign made through the dashboard. Advertiser shall protect any Advertiser passwords or similar account security measures and takes full responsibility for Advertiser's own, and third party, use of or changes to any Advertiser campaigns managed through the dashboard. Please note that access to Outbrain Self Serve shall be solely at the discretion of Outbrain and may be discontinued by Outbrain at any time.
5. Payment Terms.
5.1 Customer shall pay to Outbrain the fees described in each IO based on Audience actually delivered to the Content, as measured by Outbrain's tracking system. Unless otherwise set forth in an IO, fees will be invoiced by Outbrain to Customer within thirty days of the end of each calendar month for Audience delivered during the previous month. Invoices shall be due and payable net 30 days from receipt.
5.2 Outbrain will provide Customer with timely reports, which will provide Customer with information about the amount of Audience delivered per day of the campaign. It is understood and agreed that the final monthly reports provided by Outbrain may differ from the daily reports and the final reports will provide the conclusive basis for Outbrain's invoices to Customer. Customer may use its own tracking pixel as well; in the event that there is a material discrepancy between Customer's numbers and Outbrain's numbers (i.e., Customer's reporting indicates that the Audience delivered to Content is at least 10% lower than the number reported by Outbrain), the parties agree to work in good faith to identify the correct amount to be paid to Outbrain. If the discrepancy is less than 10%, Outbrain's numbers shall be conclusive.
5.3. In the event that Outbrain is unable to deliver Audience in the amount stated in the IO for the applicable campaign, Customer's sole remedies shall be to (i) extend the period of the applicable campaign, (ii) to replace the Content with other Content (subject to Outbrain's approval) to complete the campaign; or (iii) to pay only for the Audience actually delivered by Outbrain. In no event shall Outbrain be liable for failure to deliver Audience.
5.4 Customer will be liable to Outbrain for an interest rate of 18 percent per annum or the highest legal rate for all monies owed from the date of indebtedness until paid. Outbrain also reserves the right to suspend or terminate Customer's use of Outbrain's service until Customer's account becomes current, and to charge Customer for all costs of collection, including collection agency and attorney's fees and court costs. Outbrain may require that any orders be paid in full in advance based on contracted Audience numbers. Customer hereby authorizes Outbrain to investigate Customer's credit record. Customer agrees to provide such further financial information and documentation as may be required from time to time by Outbrain as a condition for the continued extension of credit.
6.1 Each party agrees that with respect to any Confidential Information (as defined below) that is disclosed by one party to the other in connection with this Agreement, the party receiving such Confidential Information shall not disclose such Confidential Information to any third party, or use it for any purpose, except in connection its rights and obligations under this Agreement. "Confidential Information" means all information concerning a party or any of its subsidiaries or affiliates that is not generally known to the public, which information is marked confidential or proprietary, or which under the circumstances ought reasonably to be treated as confidential or proprietary, and includes, without limitation, the IO terms, which shall be considered Outbrain's Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is, as of the time of disclosure, or thereafter becomes, part of the public domain through a source other than the receiving party; (ii) was lawfully in the possession of the receiving party as of the time of disclosure; (iii) is independently developed by the receiving party without reference to the Confidential Information; or (iv) is subsequently obtained from a third party not subject to an obligation of confidentiality with respect to the information disclosed.
6.2 Confidential Information shall be kept in the strictest confidence and shall be protected by all reasonable and necessary security measures. Confidential Information shall not be released by the receiving party to anyone except an employee or agent, who has a need to know same, and who is bound by confidentiality obligations at least as restrictive as these contained herein. Neither party will use any portion of Confidential Information provided by the other party hereunder for any purpose other than as expressly set forth under an IO and/or this Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information strictly necessary to comply with the demands of any court order, law or governmental agency.
7. Additional Representations and Warranties/Disclaimers
7.1 Each party represents and warrants to the other party that it has all necessary rights and authority to enter into this Agreement and grants the rights and licenses thereunder, and the execution of this Agreement and any IO, and the performance of its respective obligations and duties thereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound.
7.2 Customer further represents and warrants that its sponsorship of the Content does not violate any applicable laws, rules and regulations.
7.3 EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS AGREEMENT, OUTBRAIN MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED -- INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE -- ABOUT ITS SERVICES AND THE PERFORMANCE OR SUCCESS OF ANY CAMPAIGNS MADE BY IT ON BEHALF OF CUSTOMER, OR THAT OUTBRAIN'S SERVICE WILL OPERATE UNINTERRUPTED, SECURE OR ERROR FREE.
8.1 Each party shall defend, indemnify and hold harmless the other party and its respective agents, affiliates, subsidiaries, directors, officers, employees and contractors against any and all third party claims resulting from the breach of such party's duties, obligations and representations under this Agreement.
8.2 In connection with any such claim, (i) the indemnified party shall provide prompt written notice to the indemnifying party of any such claim (provided that the failure to provide such prompt notice shall not relieve the indemnifying party of its indemnification obligations herein, except to the extent it has been damaged thereby); (ii) the indemnifying party shall have sole control of the defense or settlement of the claim (provided that the indemnifying party may not enter into any settlement that may adversely affects the rights of obligations of the indemnified party without the indemnified party's prior written consent); (iii) at the indemnifying party's request and expense, the indemnified party cooperating in the investigation and defense of such claim; and (iv) the indemnified party shall have the right to participate in its defense with counsel of its own choosing at the indemnified party's expense.
9. Limitation of Liability.
EXCEPT WITH RESPECT TO CLAIMS ARISING FROM A PARTY'S INDEMNITY OBLIGATIONS, WILLFUL MISCONDUCT OR A BREACH OF THE CONFIDENTIALITY PROVISION IN THIS AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY AND ITS DIRECTORS, OFFICERS, EMPLOYEES, VENDORS OR AGENTS FOR ANY ACTION REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN TORT OR CONTRACT, ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION SHALL BE LIMITED TO THE AMOUNT OF FEES PAYABLE BY CUSTOMER UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST REVENUES OR LOST PROFITS, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.1 No press releases or general public announcements shall be made without the mutual consent of Customer and Outbrain. Outbrain shall have the right to include Customer's name on Outbrain's client list and in other marketing materials.
11.1 Neither Party may assign this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other; provided, however that either party may assign its rights or delegate its duties under this Agreement, in whole or in part, without the other's consent, in connection with a merger, reorganization or sale of all, or substantially all, of the assignor's assets, provided that the successor entity shall have sufficient resources to fully perform this Agreement and shall assume the obligation to fully perform this Agreement.
11.2 This Agreement shall be construed in accordance with the laws of the State of New York applicable to contracts entered into and wholly to be performed therein, without regard to that body of law relating to conflict of laws. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of New York and of the United States of America, in each case located in the County of New York, for any claim arising out of or relating to this Agreement (and agrees not to commence any claim relating thereto except in such courts). The prevailing party in any action arising out of or to enforce this Agreement shall be entitled to recover its reasonable attorney's fees and costs.
11.3 All notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, express courier, or certified mail, return receipt requested, to the address of the receiving party set forth on the IO, or at such different address as may be designated by such party by written notice to the other party from time to time. Notice will be effective on receipt.
11.4 No failure of either party to enforce any of its rights under this Agreement will act as a waiver of such rights. If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement, and the balance of the Agreement shall be enforceable in accordance with its terms.
11.5 Neither party shall be liable for any delay or failure to perform any of its obligations set forth in this Agreement due to causes beyond its reasonable control. Neither party shall be liable for any unavailability or inoperability of the Internet, technical malfunction, or computer error or corruption resulting in loss of data or other harm.
11.6 Sections 6, 8, 9, 10 and 11, together with any outstanding undisputed payment obligation, shall survive the termination of this Agreement.
11.7 Customer and Outbrain shall each act as independent contractors. Nothing in this Agreement shall be deemed or create or construed as creating a joint venture or partnership between the parties.
11.8 This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and may not be modified without the prior written consent of both parties. In no event shall any purchase order, insertion order, invoice or other document submitted by Customer concerning the subject matter hereof have any force or effect unless signed by Outbrain.