Terms & Conditions

1. Overview.  Adlugo may provide Client with various Services, including (i) Audience Insights, (ii) Creative Services and (iii) Managed Media Buying Services.  The foregoing are collectively called the “Services.”

 

2. Cooperation.  Client acknowledges that the rendering of the Services will require the good faith cooperation of Client.  Therefore, Client agrees to provide all information reasonably requested by ADLUGO in order to perform the Services, to timely respond to inquiries and to promptly review any plans and information.  ADLUGO reserves the right to reasonably extend the delivery schedule to the extent required because of Client’s failure to cooperate as set forth herein.  Client shall be responsible for all materials and information provided by, on behalf of or approved by, Client for use in connection with the Services.  ADLUGO may rely upon all decisions and approvals from Client, and ADLUGO shall not be liable for any matter as a result of following Client’s specific instructions.  All Services performed shall be subject to Client’s acceptance, which shall not be unreasonably withheld, delayed or conditioned.  All Services shall be deemed to be accepted if Client fails to notify ADLUGO in writing of any material defect in the Services within ten (10) business days after completion of any portion of the Services setting forth the specific deficiencies and requested remedy.

 

3. End Clients.  ADLUGO shall not be responsible for the acts or omissions of end users in connection with any output from the Services, such as visitors to Client’s website or those who access advertisements.  Client shall be responsible for all terms, conditions, privacy policies and other disclosures, including those required by applicable law, on Client’s consumer-facing online services. 

 

4. Audience Insights.  To the extent set forth on the IO, ADLUGO agrees to provide Client with Audience Insights, consisting of non-user level data regarding certain locations.  Client may use the Audience Insights for its internal business purposes only, and may not share them with third parties.  In no event may Client match Audience Insights to any personal information or seek to infer personal information from the Audience Insights.

 

5. Creative Services.  ADLUGO may develop certain deliverables for Client as set forth on the IO.

 

a. Ownership.  All content provided by Client to ADLUGO shall remain Client’s exclusive property, provided that, Client hereby grants ADLUGO a limited license to use such content in connection with these Terms.  All deliverables set forth on the IO and first created by ADLUGO solely on Client’s behalf in connection with such IO (“Work Product”) shall, upon full payment by Client of all sums due and owing to ADLUGO, be the sole and exclusive property of Client and shall be consider “work made for hire.” To the extent any Work Product is not automatically assigned to the Client, ADLUGO hereby assigns such rights to Client and agrees to take all reasonable measures, at the Client’s expense, to perfect such rights in the Client.

 

b. Third Party Materials.  To the extent that any materials licensed from third parties are included with the Work Product (“Third Party Materials”), Client shall not own such Third Party Materials and ADLUGO shall obtain, or the parties may agree that Client shall obtain, a license to use such Third Party Materials as incorporated in the Work Product. Client agrees to comply with all license restrictions and other applicable terms of any third party agreement applicable to the Third Party Materials. ADLUGO makes no representations or warranties with respect to any Third Party Materials.

 

c. ADLUGO Materials.  Creative content and materials in existence prior to these Terms, created outside the scope of these Terms or of a generic nature with general applicability, including any software, templates, or other items, developed or provided by ADLUGO hereunder (“ADLUGO Materials”), shall remain the sole and exclusive property of ADLUGO.  To the extent that any ADLUGO Materials are included with the Work Product as delivered to the Client, ADLUGO hereby grants Client a royalty-free, perpetual, non-exclusive, non-transferable license to use, copy, distribute and transfer such ADLUGO Materials solely in connection with its use of the Work Product.

 

d. Trademarks and Patents.  ADLUGO agrees that the Services purported by ADLUGO to be original shall be created by ADLUGO, however, Client acknowledges that ADLUGO shall not conduct trademark or patent searches on the Services or Work Product unless Client separately engages ADLUGO to perform such services and payment for such services is specifically indicated on the IO. 

 

6. Managed Media Buying Services.  The AAAA/IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less v3.0 (the “Standard Terms”) are hereby incorporated into this Section 6 by reference, as amended below.  Capitalized terms that are not otherwise defined in these Terms shall have the meanings assigned to them in the Standard Terms.

 

a. DSP Seats.  Media may be purchased via ADLUGO's seats with various demand-side platforms or Client’s seats with various demand-side platforms.  Client acknowledges that all media inventory is on Network Properties, and therefore ADLUGO is not responsible for such properties.

 

b. Reporting.  Except as otherwise set forth on an IO, ADLUGO's reporting on the delivery of the IO shall be the Controlling Measurement. 

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c. Excluded Sections.  Sections I(b), II(b), III(c) and IV of the Standard Terms shall not apply.

 

d. Client Data.  To the extent Client provides ADLUGO with any data for use in connection with the Services (“Client Data”), Client hereby grants ADLUGO a limited license to access, use and distribute the Client Data solely in connection with the Services.  Further, Client represents and warrants that: (i) it has all necessary rights to provide the Client Data to ADLUGO for the uses authorized herein and (ii) the Client Data has not been collected from child-directed services or knowingly been collected from any users under the age of 16. 

 

e. Governing Law. Section XIV(d) of the Standard Terms is amended by inserting “New York” in the first blank and “New York County, New York” in the second blank.

 

7. Fees.  Subject to the IO, ADLUGO shall submit invoices to Client for all Services and other amounts set forth on the IO from time to time.  Except as otherwise set forth on an IO, invoices are due in full within thirty (30) days of the date of such invoice.  If Client disputes any invoice in good faith, Client must notify ADLUGO in writing within thirty (30) days of the invoice date, otherwise such invoice shall be deemed to be final.  Client shall be responsible for interest on all fees overdue by more than thirty (30) days from the invoice date at a rate of the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by applicable law.  Client shall be responsible for any collection costs and attorney’s fees and expenses incurred by ADLUGO to collect overdue amounts.  Each party shall be responsible for the collection and payment of all taxes of whatever nature in connection with its obligations under these Terms.  If ADLUGO is required by law to collect any taxes from Client, then Client shall pay such taxes as invoiced.

 

8. Termination. These Terms shall be in effect during the term of each IO. Each IO shall have its own term.  Either party may terminate these Terms or an IO upon thirty (30) days prior written notice if the other party is in breach and does not cure such breach within the notice period. 

 

9. Third Party Platforms. The Services are dependent upon certain systems not controlled by ADLUGO, such as media companies, third party data providers and other online platforms. While ADLUGO shall make commercially reasonable efforts to ensure that the Services operates with all such providers as intended, in no event shall ADLUGO ever be liable for an act, omission or failure of any other party.

 

10. Confidentiality. In connection with these Terms, each party may disclose, or may learn of or have access to, certain confidential proprietary information owned by the other party (“Confidential Information”). Confidential Information means any data or information, oral or written, that relates to a party, or any of its business activities, technology, developments, inventions, processes, trade secrets, know how, plans, financial information, customer and supplier lists, forecasts, and projections. Confidential Information also includes the terms of these Terms. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the receiving party; (iii) is rightfully communicated to the receiving party by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the receiving party's possession free of any confidentiality obligations with respect thereto; (v) is independently developed by a party without use of any Confidential Information of the other party; or (vi) is approved for release or disclosure by the disclosing party without restriction. Each party shall maintain the Confidential Information of the other party in strict confidence and shall not disclose, publish or copy any part of such Confidential Information except as authorized and as necessary in connection with these Terms. Each party shall use the Confidential Information of the other party solely for the purpose of performing obligations or exercising rights under these Terms and shall only disclose the Confidential Information on a need-to-know basis, provided that, such party shall be liable for the acts of any third party who obtains the Confidential Information from such party. Each party shall take all necessary precautions in handling the Confidential Information of the other party and limit disclosures on a strict need-to-know basis. However, a party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that such party gives reasonable prior notice to the other party to contest such order or requirement. Each party shall promptly notify the other party in the event any unauthorized access to Confidential Information is suspected. Upon the termination or expiration of these Terms, each party shall return to the other party, or certify the destruction of, all Confidential Information of the other party, provided that, neither party shall be obligated to purge information archived pursuant to their normal document retention procedures or required to be maintained by applicable law if the provisions of this section otherwise continue to be strictly observed.

 

11. Representations; Warranties. Both parties represent and warrant that they shall comply with all applicable laws, rules and regulations in connection with the performance of their respective obligation and exercise of rights. ADLUGO further represents and warrants that the Services shall operate substantially according to its specifications. In the event the Services does not operate substantially according to its specifications, Client must provide ADLUGO with written notice within thirty (30) days of any such failure. As ADLUGO's sole obligation, and Client’s exclusive remedy, ADLUGO shall make commercially reasonable efforts to properly resolve such performance issues.  Client represents and warrants that it shall be solely responsible for all content, data and information it provides to ADLUGO for use in connection with the Services (“Client Materials”). 

 

12. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED BY ADLUGO "AS IS" AND ADLUGO EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ADLUGO DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S SPECIFIC REQUIREMENTS OR WILL BE UNINTERRUPTED.

 

13. Limitation of Liability. IN NO EVENT WILL ADLUGO BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR USE OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. ADLUGO’S CUMULATIVE LIABILITY TO CLIENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID BY CLIENT AND RETAINED BY ADLUGO DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM UNDER THESE TERMS.

 

14. Indemnification. ADLUGO shall defend, indemnify and hold harmless Client, its affiliates, successors and assigns, and each of their officers, directors, clients and agents (“Indemnitees”), against and from any and all third party claims, liabilities, damages, fines, penalties or costs of whatsoever nature (including reasonable attorney’s fees and costs) (“Claims”), arising out of or in any way connected with a claim that the proprietary portions of the Services infringe the intellectual property rights of any third party. Client shall defend, indemnify and hold harmless ADLUGO and its Indemnities against and from any Claims arising out of or in any way connected with Client’s ultimate use of the Services (except to the extent caused by a breach of these Terms by ADLUGO) and all Client Materials. The indemnifying party's obligations are conditioned upon the indemnified party: (i) giving the indemnifying party prompt written notice of any claim, action, suit or proceeding for which the indemnified party is seeking indemnity (provided that a failure or delay in providing such notice shall not relieve the indemnifying party's obligations, except to the extent prejudiced by such failure or delay); (ii) granting complete control of the defense and settlement to the indemnifying party, provided that the indemnifying party will not acquiesce to any judgment or settlement without the indemnified party's prior written consent, unless it obtains a full and final release of all claims against the indemnified party and such judgment or settlement does not impose any requirements or restrictions upon the indemnified party; and (iii) reasonably cooperating with the indemnifying party, at the indemnifying party's expense, in the defense and settlement of such claim. The indemnifying party shall provide the indemnified party the option to engage separate counsel, at the indemnified party’s expense, to participate in any claim giving rise to indemnification hereunder. The indemnifying party may settle any claim, to the extent it seeks a money payment, with or without the consent of the indemnified party. The indemnifying party must obtain the indemnified party’s consent to any settlement to the extent it consents to injunctive relief or contains contract terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned or delayed.

 

15. Publicity. ADLUGO may identify Client as a customer of the Services for promotional purposes, including displaying Client’s name, logos and trademarks on ADLUGO's website and in ADLUGO's publicity materials.

 

16. General. If any provision of these Terms is held to be void, invalid or inoperative, the remaining provisions of these Terms shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of these Terms. Client may not assign these Terms to any other entity without the prior written consent of ADLUGO, whether by operation of law or otherwise, except in connection with a merger, change of control or sale of substantially all of its assets to a party that is not a direct competitor of ADLUGO. These Terms shall inure to the benefit of the parties’ permitted successors and assigns. The provisions of Sections 5, 10, 12-16 and any accrued payment obligations shall survive the termination of these Terms. Except as set forth herein, these Terms sets forth the entire agreement between the parties on this subject matter contained herein and supersedes all prior negotiations, understandings and agreements between the parties concerning this subject matter. In the event of any conflicts between these Terms and the IO, the IO shall prevail. These Terms shall be governed by the laws of the State of New York and each party submits to exclusive jurisdiction and venue in the courts located in New York County, New York for all matters.