Simulmedia

TERMS & CONDITIONS

These Terms and Conditions are applicable for any Client’s use of Simulmedia’s Platform & Services for video media planning, media buying and media measurement, when incorporated into an insertion order, represents the parties’ common understanding for doing business.

DEFINITIONS
1. “Ad” means any video advertisement or other promotional or marketing initiatives provided by Client.
2. “Advertiser” means the advertiser for which Agency is the agent under an applicable IO.
3. “Advertising Materials” means artwork, copy, or active URLs for Ads.
4. “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
5. “Agency” means the advertising agency listed on the applicable IO.
6. “CPA Deliverables” means Deliverables sold on a cost per action basis (wherein an action could mean an app download, site visit, store sale, viewing of a show etc).
7. “CPM Deliverables” means Deliverables sold on a cost per thousand impression basis.
8. Client: any Advertiser or Agency.
9. “Deliverable” or “Deliverables” means the (i) advertising inventory (e.g., impressions, clicks, or other desired actions), and/or (ii) audience targeting, and/or (iii) media or other measurement,(iv) any addition products or services mutually agreed upon by the Parties delivered by or via Simulmedia Platform & Services
10. “Fraudulent Traffic” means the inclusion in any report or deliverable of data impressions that result from an intentionally deceptive practice designed to manipulate legitimate ad serving or measurement processes or to create fictitious activity that leads to inflated counts or uses in calculations, anything other than natural persons viewing actually displayed Ads in the normal course of using any device, including, without limitation, browsing through online, mobile or any other technology or platform. Without limitation, Fraudulent Traffic includes, the inclusion or counting of views: (i) by a natural person who has been contracted or engaged for the purpose of viewing such Ads, whether exclusively or in conjunction with any other activities of that person; (ii) by non-humans, i.e., “bots”; (iii) or by any combination of (i) and/or (ii); and (iv) that are not actually discernable or perceived by a human being.
11. “IO” means a mutually agreed insertion order that incorporates these Terms, under which the Simulmedia will deliver Ads on Advertising Inventory for the benefit of the Client.
12. Ad Inventory: Ad placements placed by Simulmedia for the Client on analogue, digital or streaming video content that is distributed to consumers via over-the-air broadcast or via a distribution provider such as cable and satellite operator or via a streaming service or by any other means.
13. Streaming Platforms: linear on on-demand video programming that is distributed over the internet either to the consumer’s TV set or viewing device, directly or or via a distribution provider, such as a virtual multichannel video programming distribution or via any other means.
14. “MRC” means the Media Rating Council.
15. Parties means Simulmedia and the Client with whom the IO is executed
16. “Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Simulmedia’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Advertising Inventory on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
17. “Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
18. “Terms” means these Terms and Conditions for Internet Advertising for Media Buys One Year or Less.
19. “Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Simulmedia or Client, and any Affiliates or Representatives of the foregoing are not Third Parties.
20. “Third Party Ad Server” means Third Party that will serve and/or track Ads.
21. “Third Party Ad Verification Vendor” means a Third Party provider of technology or a platform that attempts to verify that one or more attributes of a served Ad have been executed in a manner consistent with the terms specified by the Client and agreed to as part of the Ad campaign terms.
22. “Third Party Ad Verifier” mean collectively Third Party Ad Server and Third Party Verification Vendor.
INSERTION ORDERS AND INVENTORY AVAILABILITY
1. IO Details: From time to time, Simulmedia and Client may execute IOs that will be accepted as set forth in Section I(b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) plus applicable taxes for such Deliverables, (iii) the maximum amount of money to be spent pursuant to the IO, (iv) the start and end dates of the campaign, and (vi) third-party data vendors and corresponding costs (including taxes) that may be used. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, content or other restrictions, creative deadlines and specifications concerning ownership of data collected.
2. Each IO is valid for 10 days after the Effective Date of the IO, and must be signed by both parties within 1 days of the campaign start date in order for any metrics in the IO to be guaranteed.
3. Flight Dates in the IO can be changed up to 10 business days prior to the start of the campaign.
4. Revisions. Revisions to accepted IOs will be made and acknowledged by the other party in writing, by means of a revised insertion order.
  1. TV:
    1. Guaranteed metrics are valid until (15 business days from IO Effective Date);
    2. Final date to change flight dates or other campaign parameters (15 business days from campaign start excluding holidays); and
    3. Creative/Instructions in house by (5 business days from campaign start).
  2. CTV:
    1. Final date to change flight dates or other campaign parameters: 5 business days prior to campaign start including holidays;
    2. Creative & Tagging in house (if using Simulmedia’s ad server): 5 business days prior to campaign start; and
    3. Targeting specifications confirmed (first- or third-party audiences, lookalike creation, etc.): 7 business days prior to campaign start.
5. AD PLACEMENT AND POSITIONING. TRAFFIC.
  1. Compliance with IO. Simulmedia will make commercial reasonable efforts to comply with the IO, including all Ad placement restrictions.
  2. Creative Specifications. Client will submit creative at least 5 business prior to Start Date of the ad campaign. If creative is submitted less than 5 business days prior to Start Date of the advertising campaign, Simulmedia is no longer obligated to meet its obligations under this Agreement.
PAYMENT AND PAYMENT LIABILITY
1. Invoices. The initial invoice will be sent by Simulmedia upon completion of the first month’s delivery, or within 30 days of completion of the IO, whichever is earlier. Invoices will be sent to Client’s billing address as set forth on the IO and will include information reasonably specified by Client.
2. Client will make payment by the later of: (i) thirty (30) days from its receipt of invoice, or (ii) as otherwise stated in a payment schedule set forth on the IO.Payment Liability. Unless otherwise set forth by Client on the IO, Simulmedia will hold Client liable for all payments. In the event that the Agency does not pay Simulmedia per the terms of these Terms and Conditions, Simulmedia will have the right to invoice and collect directly from the Client. Payments over 30 days are subject to interest at 1.5% per month or the maximum allowable by law.
3. Credit is established on an Client-by-Client basis. If Client proceeds have not cleared for the IO, Client will be prohibited from advertising on the Advertising Inventory. Upon request, the Client will make available to Simulmedia written confirmation of the relationship between Client. This confirmation should include, for example, Client’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms.
4. If Client’s credit is or becomes impaired, Simulmedia may require payment in advance.
REPORTING
1. Simulmedia Reporting. If Simulmedia is serving the campaign, Simulmedia will make reporting available periodically as agreed upon with Client either electronically or in writing, unless otherwise specified on the IO. Reports will be broken out by metrics and dimensions mutually agreed upon by Client.
CANCELLATION AND TERMINATION
1. Without Cause. Client may not cancel any signed or approved IO without cause.
2. For Cause. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Client breaches its obligations, and the breach is not cured by Client within 10 days after receipt of written notice by Simulmedia, then Simulmedia may terminate the IO or placements associated with such breach upon written notice (email will suffice). Client shall still be responsible for any non-cancellable portion of the campaign that is in progress or scheduled.
MAKEGOODS
1. Makegoods may be required when Simulmedia has not delivered the number of guaranteed impressions as set in the IO. However makegoods shall only be applied to a future campaign with additional paid media with Simulmedia.
2. Unless specified in the IO, Client acknowledges Contextual Placement delivery is not-guaranteed, and Simulmedia will not be held responsible for any kind of delivery or guarantee that includes such Contextual Placements.
3. Makegood Procedure.
  1. If actual Impression Deliverables for any campaign fall below the guaranteed level as specified in the IO Simulmedia will use commercially reasonable efforts to agree upon the conditions of a makegood flight.
  2. If no makegood can be agreed upon, Simulmedia, in its sole discretion, may issue the Client a credit equal to the dollar value or the impression value, whichever is less, of the under-delivered portion of the IO for usage in a future campaign.
  3. In no event will Simulmedia provide a makegood or extend any flight beyond the period set forth on the IO without the prior written consent of Client.
  4. Simulmedia shall act in reasonable good faith to agree upon a makegood flight and only in conjunction with additional paid media. Makegood credits can be utilized at no more than 10% of the value of the paid media that runs with it. For illustration, if the makegood credit is valued at $1,000, then value of paid media that runs along with make-good credit has to be equal to or greater than $10,000
  5. The original under-delivered campaign will be considered delivered when Simulmedia delivers on the credit issued by Simulmedia determined in Section 6(c)(ii) of these Terms and Conditions.
  6. Makegood credits expire 13 months after the conclusion of the campaign for which the credits are owed.
4. Unguaranteed Deliverables. If an IO contains deliverables other than CPM or Impression Deliverables, e.g.,Contextual Placements or cost-per-action deliverables, etc., the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even delivery, and makegoods will not available to the Client, and Simulmedia will not be responsible for makegoods for campaigns with such deliverables.
FORCE MAJEURE
1. Generally. Excluding payment obligations, neither party will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, pandemics or other natural event, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”). If Simulmedia suffers such a delay or default, Simulmedia will make reasonable efforts within five (5) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Client, Simulmedia will allow Client a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Client will have the benefit of the same discounts that would have been earned had there been no default or delay.
2. Related to Payment. If Client’s ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Client’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Client will make every reasonable effort to make payments on a timely basis to Simulmedia. Subject to the foregoing, such excuse for delay will not in any way relieve the Client from any of its obligations as to the amount of money that would have been due and paid without such condition.
3. Cancellation. If a Force Majeure event has continued for five (5) business days, Simulmedia has the right to cancel the remainder of the IO or any other agreements entered into with Client without penalty.
AD MATERIALS
1. Submission. Client will submit Advertising Materials pursuant to Section II(c) in accordance with Simulmedia’s current Policies.
2. Late Creative. If Advertising Materials are not received five (5) business days prior the IO start date, Simulmedia will change the IO and reschedule the campaign as may be practical. If rescheduling is not practical or possible Simulmedia may cancel the campaign without penalty.
3. Compliance. Simulmedia reserves the right within its discretion to reject or remove any Ads for which the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript) do not comply with its Policies, or that in Simulmedia’s sole reasonable judgment, do not comply with any applicable law, regulation, or other judicial or administrative order. In addition, Simulmedia may reject or remove any Ads for which the Advertising Materials may tend to bring, disparagement, ridicule, or scorn upon Simulmedia or any of its Affiliates (as defined below), provided that if Simulmedia has reviewed and approved such Ads prior to their use on the Advertising Inventory, Simulmedia will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Client.
4. Damaged Creative. If Advertising Materials provided by Client are damaged, not to Simulmedia’s specifications, or otherwise unacceptable, Simulmedia will use commercially reasonable efforts to notify Client within two (2) business days of its discovery of such Advertising Materials. Any losses or delays caused by the damaged or deficient Creative are the responsibility of the Client and Simulmedia shall have no obligation to begin the campaign until the proper creative is received.
5. Ad Tags. Simulmedia shall place Ads on its Advertising Inventory as stated on the IO and, if required, Simulmedia will take commercially reasonable steps to implement Third Party Ad Server tags as instructed by the Client.
INDEMNIFICATION
1. By Simulmedia. Simulmedia will defend, indemnify, and hold harmless Client, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought by a Third Party and resulting from (i) Simulmedia’s alleged breach of Simulmedia’s representations and warranties; or (ii) Advertising Materials provided by Simulmedia for an Ad (and not by Client, and/or each of its Affiliates and/or Representatives) (“Simulmedia Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene. Notwithstanding the foregoing, Simulmedia will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Simulmedia’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Client, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Simulmedia serving such Ad in breach of such targeting.
2. By Client. Client will defend, indemnify, and hold harmless Simulmedia and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from (i) Client’s representations and warranties, (ii) Client’s violation of Policies (to the extent the terms of such Policies have been provided (e.g., by making such Policies available by providing a URL) via email or other affirmative means, to Client at least 14 days prior to the violation giving rise to the Claim), or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Simulmedia in accordance with these Terms or an IO.
3. By Agency. Agency represents and warrants that it has the authority as Client’s agent to bind Client to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Simulmedia and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency-specific obligations under Section XII.
4. Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
LIMITATION OF LIABILITY
1. Excluding the Parties intentional misconduct by Client, or Simulmedia, 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.
NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
1. Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know the same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
2. Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
3. Privacy Policies. Client and Simulmedia will post on their respective Web Advertising Inventory their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Failure by Simulmedia, on the one hand, or Client, on the other, to continue to post a privacy policy, or non-adherence to such privacy policy, is grounds for immediate cancellation of the IO by the other party.
4. Compliance with Law. Client and Simulmedia will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
THIRD PARTY AD SERVING AND TRACKING (Applicable if Third Party Ad Server is used)
1. Ad Serving and Tracking. Simulmedia will track delivery through its ad server and provide tracking. Simulmedia may approve in writing a Third Party Ad Server to run on its properties, Client will track delivery through such Third Party Ad Server. If there is a discrepancy of more than 10% the parties agree to work in good faith to resolve the matter. Client must report the discrepancy within 3 business days of discovery of the discrepancy to Simulmedia.
MISCELLANEOUS
1. Necessary Rights. Simulmedia represents and warrants that Simulmedia has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Client represents and warrants that Client has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
2. Assignment. Client may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Simulmedia’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
3. Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
4. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of the State of New York. Simulmedia and Agency (on behalf of itself and Client) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in the State of New York, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
5. Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Simulmedia and Client will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Client will be sent to the address specified on the IO.
6. Survival. Sections 3, 5, 9, 10, and 11 will survive termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
7. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.