adMarketplace Advertiser Terms & Conditions
Updated: May 2025
These terms and conditions are made as of date of latest signature of the Insertion Order (“IO”) (the “Effective Date”),between adMarketplace, Inc., a Delaware corporation with a principal place of business at 90 Park Ave, 11th Floor, NewYork, NY 10016 (“adMarketplace”) and the party executing the accompanying Insertion Order(s) (“Advertiser”). These terms and conditions (“Terms and Conditions”) shall constitute a legally binding and enforceable agreement betweenAdvertiser and adMarketplace, and supersede and replace all prior terms and conditions between the parties, including those related to Open Insertion Orders (defined below) or IOs. These Terms and Conditions control all existing IOs, and together with each additional executed IO collectively comprise the “Agreement”. Terms not defined in these Terms andConditions have the meanings set forth in the applicable IO. The IO controls to the extent there is a conflict between any IO and these Terms and Conditions.
1. Advertising Campaigns
a. General. Subject to the Terms and Conditions of the Agreement, adMarketplace delivers Advertisements on behalf ofAdvertiser via the adMarketplace Platform to available inventory (the “Platform”). “Advertisements” means all advertisingmaterials Advertiser provides including without limitation, text, graphic files and/or rich media.
b. IO Procedure. Advertiser must submit a completed and signed IO (including the designated campaign start date) toadMarketplace no later than five (5) days before the designated start date of such campaign. Each IO is subject to availability of the applicable inventory. In the event that the specified inventory is unavailable as communicated by adMarketplace, either party may terminate such IO upon written notice to the other party. Advertiser will deliverAdvertisements to adMarketplace no later than five (5) business days prior to the start date set forth in the IO.
c. Delay or Unavailability. Advertiser understands that adMarketplace is not responsible for any start date delays or any inventory unavailability, including those due to late submission of Advertisements.
d. License to Use Advertisements. Advertiser hereby grants adMarketplace a non-exclusive, royalty-free, world wide, fully-paid up license to use, reproduce, modify for technical performance optimization, market, display, publish, perform, distribute and transmit the Advertisements, including any content, trademarks, service marks or logos contained therein, throughout the Platform in accordance with the terms of this Agreement. adMarketplace may not modify theAdvertisements’ embedded text or links; however, adMarketplace may adjust the placement, size or appearance (e.g.color, font size) of the Advertisements for optimization purposes.
e. Refusal, Removal or Suspension of Advertisements. adMarketplace may, without prior notice or liability, refuse, remove or suspend any Advertisement, insertion order, URL link, space reservation or position commitment, from thePlatform if: (i) such Advertisement does not conform to the applicable IO, the terms of the Agreement, or any advertising specifications made available to Advertiser by adMarketplace from time to time, or (ii) adMarketplace determines in its sole discretion such Advertisement may result in violation of applicable law or regulation, may expose adMarketplace to litigation, liability or risk of adverse publicity, or is otherwise inappropriate. Advertiser waives any claim arising from such removal, suspension, or refusal and shall remain liable for any amounts due for services rendered prior to removal.
f. Cancellation/Termination. Unless otherwise specified in the IO, Advertiser or adMarketplace may cancel an IO or a particular advertising campaign upon forty-eight (48) hours written notice without penalty. adMarketplace may also pause or suspend delivery under any IO at any time for breaches of this Agreement, in its sole discretion, without liability. In the event of a material breach by Advertiser, adMarketplace may terminate this Agreement immediately without notice or cure period, without liability to adMarketplace. In the event of any termination, Advertiser shall remain liable for any amount due under the Insertion Order for advertisements delivered by adMarketplace, and such obligation to pay shall survive any termination of this Agreement.
g. Measurement and Reporting. Reports generated by adMarketplace’s technology and systems are the official counter for determining delivery of clicks or direct navigation under each IO, and as well for purposes of payment obligations.
Advertiser acknowledges that adMarketplace’s tracking data is final and binding. Any discrepancies in Advertiser’s reporting will not excuse payment obligations. Advertiser will use commercially reasonable efforts to assist adMarketplace with regard to any technical, administrative or other issues relating to the Advertisements. adMarketplace will use commercially reasonable efforts to achieve evenly-paced delivery of impressions or clicks over the course of a campaign but does not make any guarantees in the matter.
h. Term. This Agreement will be effective as of the Effective Date, unless terminated by written notice by Advertiser or adMarketplace (“Term”) in accordance with the terms of this Agreement. Acceptance of IOs, including renewals, is atadMarketplace’s sole discretion.
2. Payment
a. Payment. Advertiser shall pay amounts due for each month of the Term, in accordance with the rates set forth in the applicable IO, within thirty (30) days of the end of the applicable month, and adMarketplace reserves the right to suspend, without prior notice, its performance under the Agreement or any IO if adMarketplace determines in good faith that Advertiser’s creditworthiness has materially deteriorated since its initial determination. All payments due hereunder are in U.S. dollars and are exclusive of any applicable taxes. Advertiser shall be responsible for all applicable taxes.
b. Late Payments. Late payments will incur interest at the rate of one and one half percent (1.5%) per month or the maximum rate allowed by law, whichever is lower. Late payments may also result in removal of Advertisements from thePlatform. If adMarketplace removes any Advertisement(s) from the Platform due to late payment or any other breach of this Agreement by Advertiser, Advertiser remains liable for all fees due under the applicable IO (without refund or pro-rating or reduction of amounts due). Advertiser agrees to pay any attorneys’ fees and/or collection costs adMarketplace incurs as a result of collecting past due amounts from Advertiser. If Advertiser fails to pay within thirty(30) days of the applicable due date, adMarketplace reserves the right to require full prepayment for all future campaigns as a condition of continued service.
c. Remedy for Failure to Achieve Specified Levels. The sole remedy of Advertiser for any failure to achieve specified click or impression levels is an extension of the applicable campaign (with Advertiser’s prior consent) or non-renewal of a campaign.
d. Additional Costs. Advertiser or its client, if Advertiser is an agency, is responsible for all costs it incurs in connection with this Agreement, including, without limitation, expenses associated with creating, updating and otherwise managingAdvertisements, delivering Advertisements to the Platform and establishing and maintaining links betweenAdvertisements and web sites and areas outside the Platform. Without limiting the foregoing, adMarketplace is not responsible for third party ad serving fees or any other fees resulting from any over delivery of impressions or clicks in connection with a campaign. Advertiser shall also reimburse adMarketplace for any third-party costs incurred due to errors or omissions by Advertiser, including but not limited to failed payment transactions, incorrect tracking implementations, or non-compliant Advertisements requiring removal or reprocessing.
3. Representations and Warranties; Limitation of Liability
a. Representations and Warranties. Advertiser warrants and represents at all times that (i) Advertiser has all rights and authority necessary to enter into this Agreement and to grant adMarketplace the rights and license granted herein, (ii)Advertiser’s execution of this Agreement, and the performance of its obligations hereunder, do not and will not violate any agreement to which Advertiser is a party or by which it is otherwise bound, (iii) engaging adMarketplace’s services pursuant to this Agreement does not violate the privacy policies of Advertiser (or if Advertiser is an agency, its clients),and (iv) the Advertisements, the use and display thereof, and the content linked to from such Advertisements will not: (A)infringe or violate any patent, copyright, trademark, right of publicity, right of privacy, moral right, or any other right of any third party, (B) be libelous, defamatory, misrepresentative, obscene, or otherwise inappropriate, (C) violate any applicable law or regulation, or (D) advertise any unlawful product or service or promote the unlawful sale of any product or service. In the event any IO includes a keyword buy, Advertiser further represents and warrants that it has all rights necessary to utilize such keyword(s) in the manner contemplated by such IO and these Terms and Conditions.
b. Indemnification. Advertiser agrees to indemnify, defend and hold harmless adMarketplace, its vendors, suppliers, andPlatform members, and their respective subsidiaries, affiliates, agents, partners, officers, directors and employees from and against any loss, cost, claim, injury or damage (including reasonable attorneys' fees) resulting from claims or actions arising out of or in connection with (i) the Advertisements or Advertiser's breach of this Agreement or Data ProtectionLaws, and (ii) any third party claim arising from use of or access to the Advertisement under this Agreement or any material to which user can link, or any products or services made available to users, through the Advertisements under this Agreement.
c. Disclaimer; Limitation of Liability. ADMARKETPLACE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ASTO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ADMARKETPLACE MAKES NO WARRANTY AS TO THE NUMBER OF PERSONS WHO MAY ACCESS OR VIEW AN ADVERTISEMENT OR AS TO THE BENEFIT OBTAINED FROM ANY CAMPAIGN UNDER THIS AGREEMENT. ADMARKETPLACE IS NOT LIABLE FOR THE CONTENTS OF ANY WEBSITES TO WHICH IT DELIVERS ADVERTISEMENTS OR FORANY UNAVAILABILITY OF THE INTERNET OR OTHER TECHNICAL MALFUNCTION. IN NO EVENT IS EITHER PARTY LIABLE FOR LOST PROFITS, LOST REVENUES, OR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OFOR RELATED TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. INNO EVENT WILL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF PAYMENTS RECEIVED OR RECEIVABLE FROM ADVERTISER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TOTHE CLAIM.
4. Platform Guidelines
a. General. Advertiser understands that: (i) adMarketplace has no obligation to review the Advertisements; (ii)adMarketplace is not an Advertisement publisher, but rather manages the placement of Advertisements using its proprietary technology, (iii) the Platform is controlled by third party media companies ("Publishers"), (iv) Publishers may remove or reject Advertisements at their discretion, and (v) Advertisements placed on the Platform may be subject to additional terms and conditions as are imposed by Publishers.
5. Privacy Policy
a. General. Each party shall comply with all local, national, state, federal and international laws relating to processing of personal data or personal information (“Data Protection Laws”) which apply to it in respect of the performance of its obligations under this Agreement. If Advertiser is an agency, it shall ensure that its clients comply with all Data ProtectionLaws. Advertiser further agrees to post, or if Advertiser is an agency, cause its clients to post, conspicuously on its or its clients’ web sites, a privacy policy that complies with Data Protection Laws and at a minimum: (i) describes how Advertiser or the client, as applicable, collects, uses, stores and discloses information obtained from visitors to its web sites, and (ii)instructs visitors how to exercise their rights in regard to the collection of such information. Neither party will transfer or disclose to the other party any personally identifiable information (PII), without the other party’s prior written consent. If one party wishes to transfer or disclose PII to the other party, that party will provide at least thirty (30) days prior written notice of such proposed transfer or disclosure. Except as expressly agreed by the parties in writing signed by the authorized representatives of both parties, neither party has any obligation to collect, store, process, compile, merge, or otherwise receive any personally identifiable information under this Agreement.
b. Advertiser’s Use of Data. Subject to applicable law, Advertiser has the right to use all data provided by adMarketplace derived from the advertising campaigns set forth in the IO (“Campaign Data”) for any purpose related to Advertiser’s business. adMarketplace will not provide any PII to Advertiser in relation to campaigns, unless expressly agreed otherwise.However, Advertiser may not use such data to (i) reverse engineer adMarketplace’s proprietary technology or (ii) create competing advertising networks solutions.
c. adMarketplace’s Use of Data. adMarketplace has the right to use and disclose Campaign Data for the following purposes: (i) general reporting, including the compilation of aggregate adMarketplace platform or marketplace statistics, such as the total number of ads delivered, that may be provided to existing and potential customers, (ii) scheduling and optimization of delivery of Advertisements across all campaigns, including web sites, networks, Platforms and any other advertising inventory that adMarketplace places or reaches, (iii) for analytics, and marketing purposes, (iv) for creation of internal and external reports, including but not limited to case studies, and (v) if required by court order, law or governmental agency. The Parties agree to comply with the Data Processing Agreement (“DPA”) available at www.admarketplace.com/data-processing-addendum, which governs the processing of personal data under thisAgreement. The DPA forms an integral part of this Agreement and sets forth the roles and responsibilities of the Parties, including compliance with applicable data protection laws such as the General Data Protection Regulation (GDPR) and theCalifornia Consumer Privacy Act (CCPA).
d. Data Relating to California Consumers. To the extent that either party processes data relating to California consumers, such party shall comply with the CCPA.
6. Confidentiality
a. Definition. “Confidential Information” means any information disclosed by a party to another party during the Term(and any renewal terms), either directly or indirectly, in writing, orally or by inspection of tangible objects. All of the terms of this Agreement and all data generated pursuant to this Agreement will be deemed “Confidential”. ConfidentialInformation will not, however, include any information that: (a) was publicly known or is made generally available prior to the time of disclosure by the disclosing party; (b) becomes publicly known or is made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information. For the avoidance of doubt, pricing information is Confidential Information.
b. Protection of Confidential Information. Except for disclosure of Confidential Information that is required to be disclosed by operation of securities law or regulation, court order or other governmental demand, the receiving party agrees: (a)not to disclose any Confidential Information to any third parties; (b) not to use any Confidential Information for any purpose other than that which is reasonably required to exercise its rights or perform its obligations under this Agreement and only to the extent specified by the disclosing party in such consent; (c) to keep the Confidential Information confidential using the same degree of care the receiving party uses to protect its own confidential information, as long as it uses at least reasonable care, for the duration of the term of this Agreement and for a period of one (1) year following the expiration or termination of this Agreement and (d) to notify the disclosing party immediately in the event of any suspected or actual unauthorized use or disclosure of Confidential Information and to take all reasonable steps necessary to mitigate any harm caused. If a party is requested or required by a government agency or judicial process to disclose theConfidential Information of another party, then the receiving party will notify the disclosing party of such request and will reasonably cooperate to seek confidential treatment or to obtain an appropriate protective order to preserve the confidentiality of the Confidential Information.
7. Publisher Non-Circumvent; Pricing Information
a. Publisher Non-Circumvent. For the duration of this Agreement (including any renewal terms), Advertiser agrees not to circumvent adMarketplace by engaging directly with any publishers that adMarketplace sources or manages, for purposes of receiving ad services similar to those offered by adMarketplace. This restriction includes any efforts byAdvertiser to directly or indirectly avoid or bypass adMarketplace to secure or offer advertising services, whether by itself or through third parties. If an adMarketplace-sourced publisher contacts Advertiser directly for similar services,Advertiser will inform the publisher that adMarketplace handles advertising placements and publisher relationships within this context. Advertiser will refer the publisher back to adMarketplace’s designated point of contact and promptly notify adMarketplace of the publisher’s inquiry or outreach.
b. Confidential Pricing Information. Advertiser may gain access to proprietary pricing information of adMarketplace throughout the Term. Recognizing the sensitive nature of this information, Advertiser agrees not to disclose, share, or make available any pricing information to any third party for the duration of this Agreement and for three (3) years following its expiration or termination.
c. Breach. In the event of a breach of this Section, Advertiser agrees to pay adMarketplace an amount equal to the greater of (i) the fees paid by Advertiser to adMarketplace over the two (2) calendar months preceding the date the breach was discovered, or (ii) actual damages incurred by adMarketplace as a result of the breach. This remedy is cumulative and does not preclude adMarketplace from seeking injunctive relief or any other remedies available under law or equity and is not intended as a penalty.
8. Miscellaneous
a. Entire Agreement and Modification. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and may only be modified with prior written consent of both parties. In the event of any inconsistency between the Insertion Order and the Terms and Conditions, the Insertion Order shall control. The Terms andConditions hereof shall prevail exclusively over any written instrument submitted by Advertiser.
b. Headings. Headings and captions are for convenience only and are not to be used in the interpretation of theAgreement.
c. Sale, Transfer, or Assignment. Advertiser may not sell, transfer or assign this Agreement, any portion thereof, or any clicks, inventory or other rights obtained under this Agreement without adMarketplace's prior written consent.
d. Applicable Law. The laws of the State of New York govern this Agreement without reference to conflicts of law principles. New York County, New York provides the proper jurisdiction and venue for all disputes, and the parties here by expressly agree to such jurisdiction and venue.
e. Force Majeure. No party will be liable hereunder (and their performance shall be excused under this Agreement) by reason of any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrection, terrorism, fires, flood, storm, explosions, earthquakes, Internet outages beyond the reasonable control of such party, acts of God, war, cybersecurity attacks, governmental action, or any other cause that is beyond the reasonable control of such party.
f. Waiver. No failure of either party to enforce any of its rights under this Agreement acts as a waiver of such rights.
g. Severability. If any term of this Agreement is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
h. Notice. All notices under this Agreement will be in writing and will be delivered by personal service, confirmed fax, confirmed e-mail, 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 is effective on receipt.
i. Publicity. Advertiser grants adMarketplace a non-exclusive, worldwide, royalty-free right to use Advertiser’s name, logo, and publicly available branding materials for the purpose of co-marketing, case studies, and promotional activities related to this Agreement, including but not limited to press releases, marketing collateral, presentations, and website listings.Any such use shall be in accordance with Advertiser’s brand guidelines, if provided in writing. Advertiser may revoke this permission with thirty (30) days’ written notice, provided that any existing materials in circulation may continue to be used in their current form.
j. Survival. Sections 3, 5, 6, and 7, together with any outstanding payment obligation, survive the termination of thisAgreement.
k. Independent Contractors. adMarketplace and Advertiser are independent contractors, and nothing in this Agreement creates a joint venture or partnership between the parties.
