Amendment to Version 3.0 of the IAB Standard Terms and Conditions
This Amendment is effective on February 24, 2022. Media Company reserves the right to update and/or change this Amendment, and such updates/changes will be listed here with the effective date. Advertiser/Agency’s continued use of Media Company’s services hereunder will be in accordance with the version effective for any signed Insertion Order which links to this page.
A. Introduction. These Terms and Conditions set forth the agreement with respect to the Services described in each insertion order (“IO”) executed by the parties hereto. These Terms and Conditions, along with all IOs and exhibits executed between the parties, constitute one binding agreement (collectively, the “Agreement") by and between Nativ Mobile, Inc., a Delaware corporation, doing business through one of its subsidiaries, Mode Mobile, LLC, Mode Phone, LLC or Make Money with Giftloop Chargescreen, LLC ("Media Company") and the Advertiser/Agency referenced in connection with the services described in each IO (the "Services"). This Agreement further hereby incorporates by reference Version 3.0 of the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (the "IAB Terms"), as modified and amended in Section H. below. Capitalized terms that are not otherwise defined herein shall have the meaning ascribed to them in the IAB Terms. Media Company may modify these Terms and Conditions at any time with respect to future IOs. Accordingly, Advertiser/Agency should regularly review these Terms and Conditions for any such changes. Advertiser/Agency's ordering of new Services following any such modification to these Terms and Conditions shall constitute its acceptance thereof. In the event of a conflict between this Amendment and the IAB Terms, this Amendment shall govern.
B. Reference to Advertisers. In any instance where Advertiser/Agency is an Agency or advertising network entering into this Agreement on behalf of its client, any reference to "Advertiser" shall refer jointly to Agency or the advertising network and the applicable underlying client.
C. Media Company Services. Media Company agrees to provide, and Advertiser/Agency agrees to accept and pay for the Services. Advertiser/Agency grants Media Company and its affiliates and sub-publishers ("Affiliates") all rights necessary to undertake the marketing campaigns referenced in each applicable IO. Such rights include, without limitation, the right to distribute (i) Advertising Materials on pre-approved media (Media Company Properties shall be deemed pre-approved) and (ii), if applicable, rewards to its end users in the form of “Points” to its end users in connection with the Services.
D. Reporting and Payment. Media Company will use commercially reasonable efforts to provide reporting to Advertiser/Agency in a manner that is mutually agreed upon by the parties. Advertiser/Agency agrees to strictly abide by the payment terms of each IO executed by and between the parties as invoiced by Media Company. In the event that Advertiser/Agency wishes to dispute the amount of any invoice for any reason, it shall first be obligated to pay the full amount of such invoice (without prejudice) pending the resolution of such dispute. In order to resolve such dispute, Advertiser/Agency shall thereafter notify Media Company of such dispute in writing and provide Media Company with reasonably detailed documentary evidence supporting its position and the amount of its refund/adjustment claim, within 45 days of the invoice date, for Media Company's good faith evaluation. If Media Company agrees with Advertiser/Agency's position, it shall promptly refund or credit Advertiser/Agency with the amount of the requested refund/adjustment. If Media Company disputes Advertiser/Agency's position, the parties shall engage in good faith discussions in an effort to resolve such dispute before either party initiates legal action. If Advertiser/Agency does not follow the forgoing procedures for disputing any invoice, such invoice payment shall be deemed final and no subsequent refund/adjustment claim shall be permitted.
E. Actions. Advertiser/Agency will pay Media Company for all actions specified in accordance with the applicable IO; provided, however, that Advertiser/Agency shall have no obligation to pay for any Action that (i) it rejects in good faith within five (5) days of its receipt thereof and (ii) both parties determine is not a Valid Action (as defined below). A "Valid Action" means an action taken by a natural person that (x) is not fraudulent (as determined by Media Company), cancelled or charged back; and (y) in the case of leads-based campaigns, the action submitted meets all of Advertiser/Agency's criteria as set forth in the applicable IO.
F. Relationship. The relationship of Media Company and Advertiser/Agency shall be that of independent contractors and nothing contained herein shall be construed as creating any partnership, agency, employment, franchise, joint venture, or other similar relationship of any kind. Neither party has the authority to bind or incur any obligation on behalf of the other party; provided, however, Media Company acts as a limited agent of Advertiser/Agency's for the sole purpose of performing the Services set forth in an applicable IO.
G. Non-Solicitation. During the term of this Agreement and for six (6) months thereafter (the "Non-Solicitation Period"), Advertiser/Agency agrees that it will not solicit (for its own benefit nor for the benefit of any third-party) the services of any person who during the Non-Solicitation Period was employed or similarly engaged by Media Company (each a "Service Provider"). Notwithstanding the foregoing, Advertiser/Agency may engage a Service Provider if the Service Provider independently responded to Advertiser/Agency's generally publicized advertisement for employment (or similar engagement) without direction from Advertiser/Agency, its employees nor any third-party acting on its behalf.
H. Amended IAB Terms. The IAB Terms as between the parties are hereby modified/amended as follows:
1. The definition of “Media Company Properties” is expanded to include both websites and mobile application properties specified on an IO.
2. Section I(a) (IO Details) is amended by deleting sub-section (v) in its entirety.
3. Section II(b) (Changes to Site) is amended by adding to the second sentence: "; provided, Agency has given Media Company (i) written notice of its intent to cancel the remainder of the affected placement and the specific grounds therefor; and (ii) a meaningful opportunity to rebut and/or cure the alleged deficiencies."
4. Section III [Payment and Payment Liability – Payment Date] is amended by adding the following after the first sentence in Section III(b): “Notwithstanding the foregoing, Media Company has the right to seek payment directly from Advertiser, without notice to Agency, if Media Company has not received payment within 90 days from the delivery of the invoice to Agency.”
5. Section III [Payment and Payment Liability] is further amended by adding the following new Section II(d): “d. Suspension by Media Company. Media Company may suspend any Insertion Order without prior notice if Agency or Advertiser fails to pay Fees invoiced by Media Company within forty-five (45) days following the payment due date.”
6. Section V (Cancellation and Termination) is amended by adding new sub-section as follows: "d. Notwithstanding anything to the contrary, in the event of any cancellation or termination of any IO, Agency shall pay to Media Company all amounts owing for any placements completed by Media Company prior to the effective date of such cancellation or termination."
7. Section VI(a) (Notification of Under-delivery) is amended by revising the first sentence to read in its entirety: "Media Company will monitor delivery of the Ads, and will use commercially reasonable efforts to notify Agency as soon as reasonably possible if Media Company believes that an under-delivery is likely."
8. Section VIII(b) (Related to Payment) is amended by adding to the second sentence: ", including any amounts owing hereunder for any Services provided during any Force Majeure event."
9. Section XI (Limitation of Liability) is amended by adding to the end of the paragraph: "THE SERVICES PROVIDED BY MEDIA COMPANY ARE PROVIDED ON AN "AS IS, AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, MEDIA COMPANY MAKES NO WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS OR IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MEDIA COMPANY DOES NOT WARRANT NOR GUARANTEE ACTIONS, CONVERSION RATES, NOR RESPONSE RATES. THE SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS.
10. Section XIV(a) is deleted in its entirety and is replaced with the following new language:
- “Necessary Rights (all campaigns). Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser 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.
- Additional Rights (for ad campaigns involving the marketing or promotion of alcoholic beverages or other regulated products). Neither Media Company nor its affiliates hold any interest in any license to produce, distribute or sell alcoholic beverages or other regulated products. Advertiser shall be solely responsible for compliance with applicable federal, state and local law, rules, and regulations, including industry-specific regulations regarding the marketing and promotion of alcoholic beverages or other regulated products.”
11. Section XIV(d) (Conflicts; Governing Law; Amendment) is amended by adding Illinois and Cook County, respectively.
12. Section XIV (Miscellaneous). Section XIV is further amended by adding the new Section XIV h.: h. “Arbitration. Notwithstanding anything to the contrary, for any dispute or claim arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, where the amount being sought (exclusive of interest, costs, and attorneys' fees) is $75,000 or less, either party may submit such matter to be determined by binding arbitration in Chicago, Illinois before a single arbitrator, administered by, and in accordance with, the then-applicable Commercial Arbitration Rules of the American Arbitration Association (AAA) or the then-applicable Streamlined Arbitration Rules & Procedures of JAMS. In any such arbitration, the arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees it reasonably incurs in connection with the arbitration. Judgment on the award may be entered in any court having jurisdiction, and either party may seek provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Notwithstanding any provision with respect to governing law, such arbitration shall be subject to and governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).”