Where incorporated by reference, these AdPool Terms and Conditions for Supply Partners (the “AdPool Supply Terms and Conditions”) govern the insertion orders (“IO”) by and between the Parties and, together with the IAB Terms, the “Agreement”, whereby Wurl, LLC (“Wurl” or “Agency”) performs or offers its AdPool services to any customer (“Client” or “Media Company” and, together with Wurl, collectively the “Parties” and each a “Party”). Terms not defined herein shall have the meaning ascribed to them in the IAB Terms or the applicable IO. MEDIA COMPANY AND AGENCY AGREE THAT THE AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN. SECTION 5 OF THESE MASTER TERMS AND CONDITIONS CONTAINS AN INFORMAL DISPUTE RESOLUTION PROCESS, A BINDING AGREEMENT TO ARBITRATE, AND A CONSOLIDATED ACTION, CLASS ACTION, AND REPRESENTATIVE ACTION WAIVER. PLEASE REVIEW SECTION 5 AND THE ENTIRE AGREEMENT CAREFULLY.
Privacy. Media Company represents and warrants that it will (or will ensure that relevant third-party platforms): (i) conspicuously display a privacy notice to viewers that discloses the collection and processing of data by third parties, such as Agency, Advertisers, and related advertising platforms for the purposes contemplated under the Agreement, including personalized advertising, and that specifically names Agency and links to Agency’s privacy notice at https://www.wurl.com/wurl-advertising-and-media-services-privacy-notice/ (“Advertising and Media Services Privacy Notice”); (ii) ensure it obtains and maintains all necessary rights, lawful bases, authorizations, consents, and licenses for the processing of data as contemplated by the Agreement, which, for clarity, requires Media Company and/or the third party platforms to obtain consent on behalf of Agency, Advertiser, and related advertising platforms for the personalized advertising purposes set forth in the Advertising and Media Services Privacy Notice in a manner which complies with relevant privacy laws, including the EU and UK General Data Protection Regulation (as applicable); (iii) ensure the privacy notice provided will contain opt-out instructions for end user viewers who wish to opt out of having their data processed for advertising purposes or otherwise exercise any opt-out or similar rights such end user viewers may have under applicable laws; (iv) honor all opt-out or other similar requests from end user viewers and will ensure that such requests are communicated to Agency; (v) provide all cooperation and assistance to Agency as may be required for Agency, Advertisers, and related advertising platforms to comply with applicable laws and industry standards; (vi) not engage in any deceptive or fraudulent activity with respect to delivery of Impressions to the Ad inventory, including without limitation: (A) use any automated, deceptive, or misleading means to create Ad inventory, increase counts, or simulate performance metrics; (B) deliver Ads on root URLs or in applications other than as specified in the applicable bid request or IO; or (C) engage in any attempt to alter, block, or render inoperable any ad code or tag, pixel, or data provided by or obtained from an Advertiser; (vii) not offer Ad inventory that Media Company does not have the right to sell or (unless approved in writing and in advance by the applicable Advertiser) that can be embedded or syndicated; and (viii) not accept payment directly from any Advertiser for Ads served to the Ad inventory through Agency without Agency’s prior written consent. Without limiting Agency’s other remedies under the IAB Terms, Media Company’s defense and indemnification obligations in Section X(a) of the IAB terms shall also include a breach or alleged breach of Media Company’s obligations as set forth in this Section 1. For clarity, and notwithstanding anything to the contrary in the Agreement, data obtained hereunder is not Media Company’s Confidential Information. Notwithstanding anything to the contrary, Agency shall have the right to use any data it receives consistent with the terms of the Advertising and Media Services Privacy Notice.
SCCs. If data originating in the European Economic Area, Switzerland, and/or the United Kingdom is transferred by Media Company to Agency in a country that has not been found to provide an adequate level of protection under applicable data protection laws, the parties agree that the transfer shall be governed by Module One’s obligations in the Annex to the Commission Implementing Decision (EU) 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council as supplemented by the applicable terms in the Wurl privacy notice located at https://www.wurl.com/wurl-advertising-and-media-services-privacy-notice/ (“Standard Contractual Clauses”), the terms of which are incorporated herein by reference.
CCPA. To the extent Media Company “sells” or “shares” data that is subject to the California Consumer Privacy Act (as amended from time to time) (“CCPA”), this Section shall also apply. Media Company “sells” or “shares” such data for the limited and specific purpose of Agency performing its obligations or exercising its rights under the Agreement (the “Permitted Purposes”). Agency shall: (i) only process such data for the Permitted Purposes; (ii) comply with its applicable obligations under the CCPA; (iii) provide the same level of protection as required under the CCPA; and (iv) notify Media Company if it can no longer meet its obligations under the CCPA. Agency will permit Media Company, upon reasonable request, to take reasonable and appropriate steps to ensure that Agency uses data that is subject to this Section 3 in a manner consistent with a business’ obligations under the CCPA by requesting that Agency attest to its compliance with this CCPA Section. Following any such request, Agency will promptly provide such attestation or notice explaining why it cannot provide it. If Media Company reasonably believes that Agency is engaged in unauthorized processing of data that is subject to this Section 3, Media Company will immediately notify Agency of such belief via email, and the Parties will work together in good faith to remediate the allegedly violative processing activities, if necessary.
Indemnification, Limitation of Liability. Section X(b) and Section X(c) of the IAB Terms are hereby deleted in their entirety. Agency shall have no liability for the content of any Ad or Advertising Materials. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE IAB TERMS (INCLUDING, WITHOUT LIMITATION, AGENCY’S INDEMNIFICATION OBLIGATIONS), IN NO EVENT WILL AGENCY’S TOTAL LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED, EITHER INDIVIDUALLY OR IN THE AGGREGATE, THE FEES PAID BY AGENCY TO MEDIA COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY, BUT IN NO EVENT MORE THAN TEN THOUSAND DOLLARS ($10,000.00).
Governing Law; Arbitration; Disputes.
Governing Law and Venue for Legal Disputes Not Subject to Arbitration. This Agreement, and all claims or defenses based on, arising out of, or related to this Agreement or the relationship of the Parties under this Agreement, including those arising from or related to the negotiation, execution, performance, or breach of this Agreement, shall be governed by, and enforced in accordance with, the internal laws of the State of California without reference to its choice of law rules or any principle calling for application of the law of any other jurisdiction. Any disputes not subject to the agreement to arbitrate set forth below shall be heard only in the state or federal courts located in Santa Clara County, California unless the Parties agree in writing to some other location. Media Company and Agency consent to venue and personal jurisdiction in Santa Clara County, California for purposes of any such action.
Notice of Dispute and Required Informal Dispute Resolution Process. Except for injunctive and declaratory relief, enforcement or recognition of any arbitral awards or orders, and to suspend, terminate, or access the Wurl AdPool services under the applicable IO, if any dispute arises between the Parties concerning or relating to this Agreement, or the AdPool services, the Parties agree to work in good faith to resolve the dispute informally by providing a written notice of dispute (the “Notice of Dispute”) to the applicable Party. Any Notices of Dispute should be submitted to Media Company’s legal team at legal@wurl.com.
Agreement to Arbitrate and exception to Agreement to Arbitrate. If the Parties cannot informally resolve the dispute within sixty (60) days from receipt of the Notice of Dispute, the Parties agree to submit the dispute arising between them, including any claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope, applicability, or enforceability of this agreement to arbitrate, for determination through binding arbitration. The arbitration will be administered by JAMS (“JAMS”) pursuant to (i) the Streamlined Arbitration Rules & Procedures, and (ii) the Mass Arbitration Procedures and Guidelines if five or more demands for arbitration are filed that share common factual or legal issues and if counsel for the parties submitting those demands are the same or coordinated (collectively with (i) and (ii), the “Rules”), except as modified by this Agreement. The Rules are available at https://www.jamsadr.com/rules-streamlined-arbitration/ and https://www.jamsadr.com/mass-arbitration-procedures. To start an arbitration proceeding, a Party shall use the form available on the JAMS website (https://www.jamsadr.com/submit/). The Parties agree that all arbitration proceedings, including witness interviews, written statements or other submissions, hearings, and the arbitration decision, shall be conducted or rendered in English. At the beginning of any arbitration process under this Agreement, the Parties will select an arbitrator, fluent in English, by mutual agreement. Such an arbitrator shall be a retired judge or justice or another qualified and impartial person that the Parties decide upon, and any such arbitrator shall be subject to disqualification on the same grounds as would apply to a judge or justice in a court proceeding. If the Parties cannot agree on the selection of an arbitrator, the Parties will request a list of an odd number of potential arbitrators and alternatively strike potential arbitrators, with Agency going first, until one potential arbitrator remains. The Parties agree that the arbitrator shall administer and conduct any arbitration in accordance with California law, including the California Code of Civil Procedure, and that the arbitrator shall apply substantive and procedural California law to any dispute or claim, without reference to rules or principles of conflicts of law or any principle calling for application of the law of any other jurisdiction. To the extent that the Rules conflict with California law, California law shall take precedence. The Parties agree that any arbitration under this Agreement shall be conducted exclusively in the Santa Clara County, California for any arbitration proceedings, unless the Parties agree in writing to some other location. In addition, Media Company and Agency agree to submit to the personal jurisdiction of any federal or state court in Santa Clara County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on any arbitral award. The Parties agree that the decision of the arbitrator shall be rendered within twelve (12) months of the commencement of the arbitration (unless extended by the arbitrator for good cause), and that the decision shall be in a reasoned written opinion based solely upon the law governing the claims and defenses pleaded. The arbitrator’s decision regarding the claims shall be final and binding upon the Parties and shall be enforceable in any court having appropriate jurisdiction within the State of California. The Parties will split equally the arbitrator’s fees and other costs imposed by JAMS, but each Party shall be responsible for paying such Party’s own attorneys’ fees and costs related to the arbitration.
As set forth above, this agreement to arbitrate does not apply to claims of infringement or other misuse of intellectual property rights, claims for violation of any applicable confidentiality obligations, claims for preliminary injunctive relief for any violations of this Agreement, to request enforcement or recognition of any award or order in any appropriate jurisdiction, or to suspend, terminate, or access the Wurl AdPool services.
Consolidated Action, Class Action, and Representative Action Waiver. For disputes arising between the Parties, the Parties agree that they can only bring a claim against the other on an individual basis.
NEITHER MEDIA COMPANY NOR AGENCY CAN BRING A CLAIM AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION, CLASS-WIDE ARBITRATION, CONSOLIDATED ACTION, OR REPRESENTATIVE ACTION. THE ARBITRATOR CANNOT COMBINE MORE THAN ONE PERSON’S CLAIM INTO A SINGLE CASE, AND CANNOT PRESIDE OVER ANY CONSOLIDATED, CLASS, OR REPRESENTATIVE ARBITRATION PROCEEDING, UNLESS BOTH PARTIES AGREE OTHERWISE IN WRITING. NONETHELESS, IF ANY PORTION OF THIS CONSOLIDATED ACTION, CLASS ACTION, OR REPRESENTATIVE ACTION WAIVER IS DEEMED UNENFORCEABLE OR INVALID, THE ARBITRATOR SHALL HAVE AUTHORITY TO ISSUE ANY AND ALL REMEDIES AUTHORIZED BY LAW.
MEDIA COMPANY UNDERSTANDS THAT, ABSENT THIS AGREEMENT TO ARBITRATE, MEDIA COMPANY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE ITS CASE, AND TO BE PARTY TO A CONSOLIDATED, CLASS, OR REPRESENTATIVE ACTION. HOWEVER, MEDIA COMPANY UNDERSTANDS AND CHOOSES TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION.
Severability. This Section 5 applies to the maximum extent permitted by applicable law. If any competent authority deems any portion of this Section 5 illegal or unenforceable, such provision will be severed and the remainder of this Section 5 will be given full force and effect. In addition, if any competent authority determines that applicable law precludes the arbitration of any claim, cause of action, or requested remedy, then that claim, cause of action, or requested remedy, and only that claim, cause of action, or requested remedy, will be severed from this agreement to arbitrate and brought in a court of competent jurisdiction. If that occurs, then Media Company and Agency agree that the severed claims, causes of action, or requested remedies will be stayed until all arbitrable claims, causes of action, and requested remedies have been resolved by the arbitrator.
Construction/Modification. In the event of any inconsistency between the terms of these AdPool Supply Terms and Conditions and any IO, the terms of the IO shall control. In the event of any inconsistency between the terms of these AdPool Supply Terms and Conditions and the IAB Terms, the terms of these AdPool Supply Terms and Conditions shall control. In each instance, the terms of the controlling document shall be applied to the controlled document(s) to the minimum extent necessary to rectify such inconsistency. Agency reserves the right to modify, add to, or delete portions of these AdPool Supply Terms and Conditions at any time. Media Company will sign up for RSS notifications on Wurl’s website to receive email notifications of any such changes to the AdPool Supply Terms and Conditions. Agency will post on its website a copy of the modified AdPool Supply Terms and Conditions, which will become effective immediately. Media Company’s continued use of the services under the applicable IO after any such changes to the AdPool Supply Terms and Conditions have been made constitutes acceptance by Media Company of such changes. In addition, Agency reserves the right to change and modify the features and functionality of the services under the applicable IO at any time or suspend any or all of such services. Media Company’s continued access to or use of the services under the applicable IO indicates Media Company’s acceptance of such modifications.