Addendum to American Association of Advertising Agencies and the Internet Advertising Bureau
Standard Terms and Conditions for Internet Advertising
This addendum (“Addendum”) amends Version 3.0 of the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less set forth by the American Association of Advertising Agencies and the Interactive Advertising Bureau (the “Standard Terms” and collectively with this Addendum, the “Agreement”) for participation by Agency and/or any party for which it purchases or manages advertising (“Advertiser”) on any Design Within Reach, Inc. (“Media Company”) properties. To the extent that any IO is signed directly by Advertiser and not by any Agency, it is understood that all obligations of both Agency and Advertiser as set forth in the Agreement, shall be deemed obligations of the Advertiser. Except to the extent specifically modified by this Addendum, all other terms and conditions of the Standard Terms remain in full force and effect. To the extent of any conflict between the terms of this Addendum and those of the Standard Terms, the specific terms of this Addendum shall control and any cross-references in the Standard Terms to provisions that have been deleted by the Addendum shall be deemed null and void.
Notwithstanding anything to the contrary in Section I of the Standard Terms or any other provision herein, Media Company’s acceptance of an IO will be effective only via a signed written document.
- Section I(c): Delete this section in its entirety.
- Section II(a): Replace this section in its entirety with the following: “Media Company will use reasonable commercial efforts to comply with the IO, including without limitation all Ad placement restrictions, requirements to create a reasonably balanced delivery schedule where possible in light of user-driven or content-driven ad delivery, provided however, that Media Company does not guarantee the levels or timing, click through rates or delivery of any impressions, positioning, clicks or conversions for any Ads, or specific flight/campaign dates, notwithstanding any estimate or other statement thereof provided in any IO or any other document. Without limiting the foregoing, Media Company does not guarantee or warrant that any particular number of users will view the Ads, click on the Ads or make any purchases after clicking on the Ads.”
- Section II(c): Delete everything except for the first sentence.
- Section II(d): Delete this section and replace with “Intentionally Deleted.”.
- Section III(a): The following is added to the end of the Section: “Agency or Advertiser must raise any disputes about an invoice or request for adjustments within thirty (30) days of receipt of the invoice, or the invoice shall be deemed correct and final. If Agency or Advertiser does dispute any fees in good faith, Agency shall pay the undisputed fees by the due date and the parties shall promptly discuss in good faith the fees then in dispute. Agency shall pay 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. Agency shall be responsible for any collection costs and attorney’s fees and expenses incurred by Media Company to collect overdue amounts.”
- Section III(c): delete this section and replace with “Intentionally Deleted.”
- Section IV(a): delete this section and replace with “Intentionally Deleted.”
- Section IX(e): Add the following to the end of the subsection: “Notwithstanding the foregoing, Agency and Advertiser grant Media Company all necessary rights to copy, distribute and display the Ads as necessary to perform hereunder and Media Company may (but shall be under no obligation to) modify Ads as necessary to ensure compliance with any Policies or to otherwise ensure the Ads comply with the technical specifications and requirements of the Sites. Advertiser and Agency are solely responsible for all: (a) content of all Advertising Materials, whether generated by or for them (or at their request) and (b) web sites or other properties reachable from the Advertising Materials and Advertiser services and products. Agency and Advertiser represent and warrant that: (i) all Agency and Advertiser information is correct and current and (ii) the websites linked from their Ads (including services or products therein) and the Advertising Materials will not violate or encourage violation of any applicable laws or Policies or disrupt the proper functioning of any website in the Network. Notwithstanding any other provision herein to the contrary, Advertiser and Agency agree and acknowledge that Media Company shall have the right to immediately cancel or suspend any IO hereunder without written notice in the event that Media Company determines that a breach of the foregoing representations and warranties has or may occur or that continued performance hereunder may violate applicable law..”
- Add a new subsection “h” to the end of Section IX with the following text: “Representations: Advertiser and Agency represent and warrant that the Advertising Materials (i) comply with all applicable laws and regulations; (ii) are not misleading or include unsubstantiated claims regarding Advertiser’s products/services; (iii) to the best of their knowledge do not infringe, violate or misappropriate any copyright, trademark, patent, trade secrets or agreements or any other intellectual property rights of any third persons, including but not limited to, rights of privacy or publicity, unfair competition, contract, property, defamation, privacy, publicity and “moral rights; do not and will not contain any program routine, device, code or instructions (including any code or instructions provided by third parties): and (iv) are not designed to disrupt, disable, or otherwise interfere with the operation of any user or end user property or service, nor include malicious or hidden routines or malware, viruses, Trojan Horses, spyware, adware, worms or backdoor routines or data transmissions”
- Section X(a): Delete the words “Media Company’s display or delivery of any Ad in breach of Section II(a) or Section IX(e)”.
- Section X(b): Add the following: “or of any other term of the Agreement” to the end of Section X(b)(i).
- Section XI: (i) Add the following: “or costs of procurement of substitute goods and services” after “loss of information” and (ii) add the following at the end of the subsection: “Notwithstanding any other provision herein to the contrary, in no event shall Media Company’s total, aggregate liability for all claims whatsoever arising out of or relating to this Agreement exceed the amount actually paid by Agency and Advertiser to Media Company under the IO giving rise to the claim during the twelve (12) months prior to the time the claim arose. Any action for damages against Media Company must be brought within six (6) months of the date the circumstances giving rise to the claim arose.”
- Section XIII: delete this section and replace with: “Media Company will track delivery through its ad server and Agency and Advertiser shall not use any Third Party Ad Server.”
- Section XIV(a): Delete the first sentence of this Section. Replace with the following: “Except as expressly set forth herein, Media Company disclaims any and all warranties, including, without limitation, any warranties of merchantability, fitness for a particular purpose, or other warranties arising by usage of trade, course of dealings, or course of performance.”
- Section XIV(c): Replace “Each IO (including the Terms)” in the first sentence with the following: “The Standard Terms, the Addendum and the related IO.” Add the following at the end of the subsection: “It is expressly understood that this Agreement shall apply to any Deliverables provided to Agency and/or Advertiser regardless of whether the parties have executed an IO for such Deliverables. Advertiser or Agency may grant approvals, permissions, extensions and consents by email, but any modifications to this Agreement must be agreed to in a writing (not including email) executed by both parties. No terms, provisions or conditions of any Agency/Advertiser purchase order, acknowledgment or other business form that Agency/Advertiser may use or any handwritten changes by Agency/Advertiser will serve to alter or have any effect on the terms of this Agreement.”
- Section XIV(d): Replace the first sentence with the following: “In the event of any inconsistency between the terms of the Standard Terms, an IO and the Addendum, the terms of the Addendum shall govern.”
- Delete each square bracketed blank and insert “Connecticut” into the first blank and “Fairfield County, Connecticut” is inserted into the second blank.