Terms and Conditions

Except as otherwise set forth herein, this Insertion Order “(IO”) is governed by the IAB/AAAA Standard Terms and Conditions for Media buys One Year or less Version 3.0 ("IAB T&Cs) found at https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf, and as may be updated by the IAB/AAAA from time-to-time, with Strategus as “Media Company” and  you the Customer as either Advertiser or Agency.  To the extent you the Customer are, in fact, an Advertiser and not an Agency, then all terms and conditions contained in the IAB T&Cs for an Agency shall also apply to you in your role as Advertiser including, but not limited to, all representations, warranties, indemnities, and liabilities of an Agency.  All capitalized terms not specifically defined in this Insertion Order shall have the meaning as set forth in the IAB T&Cs.

REPLACEMENT TERMS:

Section III of the IAB T&Cs is hereby replaced with the following:

III. PAYMENT AND PAYMENT LIABILITY

a.  Invoices. The initial invoice will be sent by Media Company 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 Agency’s billing address as set forth on the IO and will include information reasonably specified by Agency, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 90 days of delivery of all Deliverables. 

Upon request from the Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided on a calendar-month basis with the net cost (i.e., the cost after subtracting Agency commission, if any) based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on the applicable IO.

b. Payment Liability and Payment Date. Agency is responsible for all payments due in accordance with the IO. Agency will make payment 30 days from its receipt of invoice, or as otherwise stated in a payment schedule set forth on the IO. Media Company may notify Agency that it has not received payment in such 30-day period and whether it intends to seek payment directly from Advertiser. Media Company may do so five (5) business days after providing such notice.

c. Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.

d. Agency agrees to pay a fixed monthly fee for advertising services, with flexibility for the Media Company to adjust the mix of services and products delivered to optimize campaign performance.  Agency agrees that in exchange for the fixed monthly fee, Media Company can adjust the mix of services and products delivered to optimize campaign performance. 

f. Campaign Flexibility and Optimization. Media Company shall have sole discretion to adjust the allocation of advertising products and services within the agreed monthly budget to optimize campaign performance at Media Company’s sole discretion. Subject to the foregoing, Media Company will consult with Agency before, during, and after each campaign period to review performance and proposed adjustments to the allocation of advertising products and services during the campaign period to better achieve any campaign goals. 

g.  Disclaimer Regarding Campaign Goals. Notwithstanding anything to the contrary, Media Company makes no representation, warranty, or guarantee that any campaign goals, performance objectives, or outcomes (including, without limitation, impressions, clicks, conversions, or other metrics) will be achieved. Agency acknowledges and agrees that Media Company shall not be liable or responsible in any manner for the failure of any campaign to meet any stated goals or objectives, whether expressed or implied.

h. Change Management. Agency agrees to participate in regular communication with Media Company, including pre-campaign planning, mid-campaign check-ins, and post-campaign reviews, to facilitate Media Company’s campaign optimization and ensure alignment with any agreed goals or objectives.

i. Invoices. Media Company shall invoice Agency on a monthly basis for a budget amount regardless of the specific mix of advertising products delivered during that month. The allocation of products and services may vary month-to-month.

j. Payment Liability. Agency acknowledges that monthly invoices reflect a budget commitment to be paid monthly by Agency per the terms of the IO and not a line-item breakdown of specific deliverables or services. Media Company shall endeavor to provide a summary of services rendered and performance metrics for each month.

ADDITIONAL TERMS:

In addition to the IAB T&Cs, the following Strategus provisions (“Strategus Provisions”) provided below shall govern the Insertion Order:

Customer, whether an Agency or Advertiser will be responsible for furnishing Strategus with all data and information required by Strategus, including but not limited to the Advertising Materials, necessary for Strategus to execute the IO in accordance with the IAB T&Cs and these Strategus Provisions. Strategus will be entitled to rely upon such Advertising Materials, data, and information and will not be responsible for the sufficiency or accuracy thereof. In addition, Customer shall be solely responsible for ensuring that the Advertising Materials comply at all times with all applicable laws and regulations including, without limitation, all privacy and data security laws, shall not be misleading or deceptive, shall not offer or disseminate fraudulent goods, services, schemes, or promotions, and shall not include malicious code, including but not limited to viruses, trojan horses, worms, time bombs, or any other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, data, or personal information of Strategus or any other third party. Customer agrees to indemnify and hold harmless Strategus and its suppliers and vendors from any and all claims arising from the violation of the IAB T&Cs or the Strategus Provisions specifically including, but not limited to, any third party intellectual property or privacy right over the Creative Assets, Advertising Materials, data, and information provided by Agency. Further, to the extent any data, information, or Advertising Materials contains the personally identifiable information (“PII”) of any individual as defined by any state, federal, or international privacy and data security law or regulation, Customer must first notify Strategus in writing prior to providing Strategus with any such PII.  Moreover, to the extent any individual has provided Customer with any notice under any “right to be forgotten” or “opt-out” provision of any state, federal, or international privacy and data security law or regulation, and where said individual’s PII has been provided to Strategus, Customer shall immediately inform Strategus of said individual’s request and shall also provide Strategus with a complete replacement file of any data, information, or Advertising Materials with said requesting individual’s PII removed at Customer’s sole cost and expense.

Strategus reserves the right to suspend performance of services under the IO, at any time, and with no notice to Customer, in the event that Strategus determines, in its sole discretion, that:  (i) Agency is in material breach of the Agreement; (ii) the Advertising Materials are unlawful, not permitted, not approved by an appropriate regulatory authority, obscene, indecent, defamatory, harassing, threatening, harmful, explicit, pornographic, hateful, violent, racist, sexist, genderist, violates the privacy rights or publicity rights of others, abusive, inflammatory, or otherwise inappropriate; (iii) the Client Assets infringe the intellectual property rights or other rights of any person or entity; and (iv) any other reason in Strategus’ reasonable business judgment is necessary to protect Strategus.

Customer understands and acknowledges that this IO is for the purchase and delivery of Impressions or services to Customer’s target audience as specified in the IO, nothing more.  Strategus agrees to use commercially reasonable methods to deliver the Impressions or services specified in the IO.  Strategus will provide Customer a Performance and Delivery Report showing the number of impressions or description of services delivered during a Campaign. Customer agrees the Strategus performance and delivery report shall constitute satisfactory proof of the impressions or services delivered during a campaign and Strategus shall not be under any obligation to provide additional proof of the impressions or services delivered during a campaign. Customer may always use its own independent third party verification tools at its own expense. For purposes of the Strategus Provisions and this IO, “Impressions” means the number of times a creative asset, or Advertising Material, was delivered.  Customer acknowledges and agrees that upon receipt of the Strategus Performance and Delivery Report, all amounts quoted to the Customer in the IO are and shall be immediately due and payable.

In the event that any suit or action is instituted to enforce any provision in the IAB Terms and Conditions or the Strategus Provisions, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to the IAB Terms and Conditions or the Strategus Provisions, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.

Data Security

Media Company shall maintain, during the term of this Agreement, appropriate technical and organizational security measures designed to protect Customer’s Confidential Information against accidental or unlawful destruction or accidental loss, damage, alteration, unauthorized disclosure or access. Upon Customer’s request, Media Company shall provide Customer with a summary of Media Company’s most recent SOC 2 report.

Unless otherwise prohibited by applicable law, Media Company shall notify Customer without undue delay after Media Company confirms a Security Breach.  Such notification shall include, to the extent such information is available, (a) a detailed description of the Security Breach, and (b) the type of data that was the subject of the Security Breach.  “Security Breach” means a breach of Media Company’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Customer’s Confidential Information in Media Company’s possession, custody or control.

Termination

Either party may terminate this Agreement if the other party materially breaches this Agreement and does not cure such breach within thirty (30) days of receipt of the breach notice.
Upon termination or expiration of this Agreement, Media Company shall provide Customer with a mechanism for Customer to access any historical data. Media Company shall continue to store Customer’s data in accordance with the security measures set forth in this Agreement.

Warranty Disclaimer – Read Carefully!

THE SERVICES TO BE PROVIDED UNDER THIS AGREEMENT ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

Damages Limitation – Read Carefully!

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY PROVISION OF THE IAB T&Cs, THE IO, OR THE STRATEGUS PROVISIONS, CUSTOMER AND STRATEGUS AGREE THAT STRATEGUS LIABILITY FOR ANY CLAIMS ARISING OUT OF THE BREACH OR NONFULFILLMENT OF THE IAB T&Cs, THE IO, OR THE STRATEGUS PROVISIONS SHALL BE LIMITED TO THE TOTAL PRICE LISTED IN THE SUMMARY AND THAT NEITHER PARTY SHALL BE ENTITLED TO RECOVER ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES ON ACCOUNT OF LOST PROFITS, LOST OPPORTUNITIES, BUSINESS INTERRUPTION, OR DIMINUTION IN VALUE.

This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Colorado without giving effect to the principles of conflicts of laws.  Any action brought by any party hereto shall be brought in the District Court for the City and County of Denver, Colorado.  This Agreement, including the referenced terms and conditions, constitutes the entire agreement between the parties and supersedes any and all prior written and/or oral agreements.  This Agreement may be altered or modified only by a writing signed by the parties.

In the event of a conflict between the IAB T&Cs and the Strategus Provisions, the Strategus Provisions shall control.