Terms and Conditions
Updated on December 16, 2024.
1. Certain Definitions
1.1.“Agreement” means the Platform License Agreement.
1.2 “Audience Tools” means the functionality provided in Content Distribution that enables advertising campaigns to be targeted to particular types of users (e.g., avid golfers). Audience Tools may utilize audience data provided by Customer (i.e., first party data), third parties (e.g., BlueKai) or inPowered. For clarity, any audience data provided by Customer shall constitute Customer Data.
1.3 “Business and Campaign Data” means the data generated by Customer’s use of the Services (defined below) and the transactions under the Agreement. Business and Campaign Data does not include Customer Data (defined below) or inPowered Data (defined below).
1.4 “Customer Data” means the data Customer imports into Content Distribution (defined below), including but not limited to information about advertising campaigns and Customer’s account. As described further in Section 5.1, Customer is the sole owner of Customer Data and inPowered may use the Customer Data solely to provide Services to Customer under the Agreement.
1.5 “Fees” means the fees shown in the Agreement and the fees shown in the Content Distribution user interface for any additional optional features and services that Customer uses.
1.6 “Inventory Partners” means the third parties who make inventory available for purchase through Content Distribution.
1.7 “Total Media Spend” means the cost of all ad inventory purchased and/or data licensed by or on behalf of Customer through Content Distribution.
1.8 “Services” means the services and functionality provided by Content Distribution, any campaign management services, tags and pixels, and any other services inPowered provides to Customer.
1.9 “inPowered Data” means all data residing in Content Distribution that does not constitute Customer Data, Business and Campaign Data or third party data underlying the Audience Tools.
1.10 “Total Cost” means Total Media Spend plus any applicable Fees.
2. Services
2.1 Self-Serve Usage. Subject to Customer’s compliance with the terms of the Agreement and as long as Customer has paid its fees in a timely fashion, inPowered grants Customer a non-exclusive, non-transferable right to access and use the Services on a self-serve basis, including for purposes of purchasing advertising and tracking and measuring content analytics. Customer will obtain and maintain (and hereby grants to inPowered to the extent necessary), all rights and permissions needed to buy inventory on Customer’s behalf, perform tracking and analytics, and to store and serve ads. inPowered may offer additional services beyond those described herein, including third party services. Fees for such services will be shown in the Content Distribution user interface or otherwise agreed to by the parties. In addition, to the extent that Customer requests inPowered’s help to use the Services, whether such requests are verbal or in writing, Customer consents to the actions that inPowered performs on its behalf. Customer retains sole responsibility for such assisted use of the Services.
2.2 Reporting. Customer will have access to inPowered’s online reporting interface. All reports (and/or related data) from the interface are solely for the internal use of Customer. Reports and related data may not be shared with any third party other than to provide analytics services to Customer; provided, that such third party is contractually prohibited to utilize the reports, data or results therefrom for any purpose other than to provide the analytics services for Customer and must delete all copies of all data immediately thereafter. Customer shall be fully liable for the breach of the obligations of this Section by any third party.
2.3 Campaign Analytics. inPowered offers analytics such as impression, click, engagement, time spent and conversion tracking (“Campaign Analytics”). This Section only applies if Customer implements the analytics code available in Content Distribution (“Campaign Analytics Code”). inPowered may append certain parameters to the URL associated with Customer’s ad to enable the Campaign Analytics. Customer may not edit or delete such parameters without inPowered’s prior written consent. Upon termination of the Agreement, Customer must promptly remove all Campaign Analytics Code. If Customer implements the Campaign Analytics Code, Customer acknowledges and agrees that inPowered may monitor interaction with its ads and website(s), inPowered may gather and use information from cookies and/or other automated technologies, but that inPowered does not collect information such as the user’s name or email address.
2.4 Audience Tools. Fees for use of Audience Tools (e.g., fees for targeting based on third party audience data) will be as shown in Content Distribution or as agreed in advance in writing. Customer may use the Audience Tools solely for the purpose of managing campaigns through Content Distribution and shall not attempt to extract or recreate the data underlying the Audience Tools or assemble similar data or audience segments itself or from any different third party.
2.5 Prohibitions. Customer will use the Services only for its own use. Customer will not (a) attempt to circumvent any Content Distribution security measure, (b) share its Content Distribution login or otherwise grant account access with any third party without the express permission of inPowered, (c) reproduce, distribute, modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble any inPowered-provided tag, the Services or any portion thereof, (d) use or authorize the use of the Services for any purpose not permitted under the Agreement, (e) copy, sell, transfer, lease, lend, syndicate, or sub-syndicate the Services, or use the Services for co-branding, timesharing, arbitrage (e.g., reselling), service bureau or other unauthorized purposes, (f) utilize rotating ad tags or otherwise violate the Ad Standards, (g) import into Content Distribution any personally identifiable information including by using inPowered’s ad tags or pixels, or (h) distribute viruses or other malware (through the ads or any other mechanism). inPowered may immediately suspend Customer’s access or terminate the Agreement upon any breach by Customer of this Section 2.6. In the event of a breach of this Section 2.6 that results in a termination or suspension of inPowered’s ability to conduct business with a third party partner (e.g., an inventory provider), without limiting any rights or remedies available to inPowered, and notwithstanding any other provision in the Agreement to the contrary, Customer shall be liable to inPowered for all lost profits resulting from suspension, which shall be added to Customer’s invoice. Inasmuch as the services inPowered provides are uniquely developed to fit the Customer’s particular needs, attempts to transfer any portion of the work to any third party could cause significant damage. Under no circumstances may Customer use the Services for gathering competitive intelligence. Customer may not create targeting profiles or segments on the basis of the publisher sites that it has visited, the content on the publisher’s page or site, or the general interest area(s) covered by the publisher (e.g., Customer may not create an “ESPN Audience” segment based on any information obtained during a prior campaign on ESPN properties).
3. Payment and Taxes
3.1 Unless the parties agree otherwise in writing, inPowered will invoice and Customer will pay in US dollars. If Customer chooses to pay its invoice via credit card, a 3% convenience fee shall be added to such amounts. All fees due are exclusive of sales, service, use, business and any similar taxes (collectively, “Transaction Taxes”). Customer shall self-assess any applicable Transaction Taxes to the extent required or allowed under applicable law. In the event that Customer does not self-assess any such Transaction Taxes, Customer shall indemnify and hold harmless inPowered against such Transaction Taxes and any applicable interest or penalties. If self-assessment is not required or allowed and inPowered is required to charge applicable Transaction Taxes to Customer, Customer shall pay to inPowered the total amount due on inPowered’s invoice, including any Transaction Taxes, in accordance with the payment terms set forth in the Agreement. In the event that inPowered does not charge such Transaction Taxes at the time of initial invoicing, but the relevant government authority determines that inPowered should have charged such Transaction Taxes, inPowered shall charge to Customer, and Customer shall pay to inPowered, any such Transaction Taxes as soon as practicable after such determination.
4. Counting
4.1 inPowered will have sole responsibility for calculating and reporting metrics on media or data bought and sold through Content Distribution and such metrics shall be used for calculating payments. inPowered will make such metrics available to Customer through Content Distribution. All Customer-trafficked ads will be counted as impressions. In the event of a discrepancy between Customer’s records and inPowered’s metrics, Customer may inspect the log files up to twice per calendar year, provided that any inspection shall be at reasonable times and on reasonable notice, and Customer may not inspect the log files for the same time period more than once. Any data (except for Customer Data) made available to Customer during an inspection is inPowered’s Confidential Information and Customer will not disclose such data to any third party or use such data for any purpose other than verifying inPowered’s accounting. Additionally, inPowered will make reasonable technological and auditing efforts to ensure inPowered end of the month figures are within 10% of the end of the month totals of supply-side counts. In the event that there is a discrepancy of more than 10% between the reported cost of inventory or data, based on a calendar month, and the Customer and inPowered are unable to resolve the discrepancy, inPowered is responsible for the amount of the total supply discrepancy above 10%. Customer must raise any discrepancies within 30 days of the date of the applicable invoice. inPowered may update numbers if there is delay in reporting affecting month-end invoicing.
5. Ownership and Data Usage
This Section describes the parties’ rights and obligations as to Customer Data, inPowered Data and Business and Campaign Data. Aside from any first party targeting data provided by Customer, which constitutes Customer Data, this Section does not cover the parties’ rights and obligations as to any data underlying the Audience Tools (see Section 2.5 above).
5.1 As between inPowered and Customer, (a) Customer owns all right, title and interest in all Customer Data and the ads Customer provides, and (b) inPowered owns all right, title and interest in the Services, including future developments and enhancements, and the inPowered Data. Aside from the rights granted herein, neither party grants the other any other right, express or implied, and each party reserves all rights not expressly granted hereunder.
5.2 As to Customer Data, inPowered may use such data solely to provide the Services available under the Agreement. As to inPowered Data, Customer may use such data solely in connection with its use of Content Distribution and other Services. As to Business and Campaign Data, each party may use the data generated by Customer’s use of the Services as follows. Customer may use such data for any internal business purpose provided that (a) it complies with its privacy policy, (b) it complies with the terms of the Agreement and the Section herein including, but not limited to, Section 2.6, (c) it does not merge or combine any such data with any personally identifiable information or otherwise re-identify any individual, and (d) it does not disclose data that describes or reflects the performance of Content Distribution (or any other Services), or any publisher or inventory partner, to third parties except service providers who are under confidentiality restrictions. inPowered may use such data (a) to provide the Services available under the Agreement, (b) internally for any other business purpose (e.g., fraud detection or financial reporting), and (c) externally if such data is aggregated with other data such that third parties cannot attribute the data to Customer (e.g., publishing industry trends on average CPEs). Customer acknowledges that Inventory Partners may have access to information about purchasers of their inventory.
5.3 Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by Customer relating to Content Distribution, the Services or any other services or products of inPowered, may be voluntarily provided and Customer agrees that each may be used by inPowered without compensation, accounting or attribution to Customer, and Customer grants a perpetual, irrevocable, fully paid up right and license to any of the foregoing.
6. Compliance
6.1 Both parties will comply with all applicable laws, rules, regulations and government guidance (inPowered in its provision of Content Distribution and Services in the form provided, and Customer as to the ads it provides and its use of Content Distribution and the Services), which shall include, for purposes of clarification and not of limitation, FTC guidance on sponsorships and native advertising. Customer will comply with inPowered’s Ad Standards and security requirements and with any applicable Inventory Partner ad standards provided to Customer (all of the foregoing, “Ad Standards”). Customer will not use the Services in connection with any ads (or the targeting thereof) or other digital content that are obscene or pornographic, or that depict illegal activity. In addition, Customer will not use the Services in connection with any ads that violate any law, regulation or third party right (including intellectual property and privacy rights) or that are deceptive or defamatory. Without limiting Customer’s obligations under the Children’s Online Privacy Protection Act (“COPPA”), Customer shall not use any persistent identifier to target users of any inventory (e.g., websites, apps or other online properties) directed or targeted at children under age 13 or that Customer knows or should know are used by a substantial or disproportionately high ratio of children under age 13. inPowered may immediately suspend any campaign, Customer’s use of Content Distribution and the Services or terminate the Agreement if Customer violates this Section 6.1.
6.2 inPowered may reject any ads that do not comply with the applicable Ad Standards. inPowered may immediately suspend any Customer campaigns if inPowered reasonably determines that Customer or any ad provided by Customer has failed to comply with the Agreement or the applicable Ad Standards, the guidelines or requirements provided by an ad exchange or other Inventory Partners or has used the Services in a manner that could damage Content Distribution or reflect unfavorably upon inPowered, its affiliates, or Inventory Partners. inPowered will promptly notify Customer in writing upon any such suspension. If Customer fails to cure its non-compliance within 10 days of notice or Customer repeatedly fails to comply, inPowered may immediately terminate the Agreement upon written notice to Customer.
7. Mutual Indemnification
inPowered shall indemnify, defend and hold harmless Customer and its directors, officers, employees and agents (and successors, heirs and assigns) (the “Customer Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and costs) (“Liabilities”) incurred by the Customer Parties in connection with any third-party claim that inPowered’s proprietary technology that provides the Services, in the form provided by inPowered, infringes any US patent or other third party intellectual property right. Customer shall indemnify, defend and hold harmless inPowered and its directors, officers, employees and agents, its and their respective successors, heirs and assigns (the “inPowered Parties”) against any Liabilities incurred by the inPowered Parties in connection with any third-party claim arising out of or relating to (a) Customer’s use of Content Distribution or the Services, (b) any advertisement or other material with which Customer uses Content Distribution (including the ads, landing pages and other materials of Customer and Customer’s clients), and (c) the breach of any obligations or restrictions in this Agreement by any advertiser or third party partner of Company. The indemnified party will provide the indemnitor with prompt notice of any claim (provided that the failure to promptly notify shall only relieve indemnitor of its obligation to the extent it can demonstrate material prejudice from such failure) and at the indemnitor’s expense, provide assistance reasonably necessary to defend such claim. The indemnitor will not enter into a settlement that would result in liability to the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed.
7.1 inPowered shall have no obligation for any claim arising from or relating to (a) compliance with Customer specifications, (b) any combination of the Services and/or Business and Campaign Data with products or services not supplied by inPowered, where such infringement would not have occurred but for such combination, (c) adaptation or modification of the Services or Business and Campaign Data, where such infringement would not have occurred but for such adaptation or modification, (d) Customer’s failure to follow instructions provided by inPowered which would have cured the infringement, provided that following such instructions would not have caused Customer substantial additional cost, (e) use of the Services or Business and Campaign Data other than as described in Sections 2 and 5 above, or (f) Customer’s continued use of a version of Content Distribution other than the most recently released version, where such infringement would not have occurred if such most recently released version had been used. If any of the subsections above apply, Customer will indemnify, defend and hold harmless inPowered and its officers, directors, employees, and agents from and against any Liabilities arising directly or indirectly out of such claims.
7.2 If Content Distribution or the Services are held in a legal action or proceeding to infringe any intellectual property rights of a third party and the use of Content Distribution or the Services is enjoined, or inPowered reasonably believes that it is likely to be found to infringe or likely to be enjoined, then inPowered may, at its sole cost, expense, and option, either (a) procure the right to continue using Content Distribution or the Services, or (b) modify Content Distribution or the Services so that it becomes non-infringing without affecting the basic functionality of Content Distribution or the Services; provided, however, that if (a) and (b) are not practicable, inPowered may, in its sole discretion, terminate the Agreement with respect to Content Distribution or the Services by giving Customer 30 days written notice, upon which termination inPowered shall refund the portion of such pre-payment that reflects the remaining term. inPowered’s obligations as stated herein are Customer’s sole remedy and inPowered’s sole liability arising out of or relating to infringement claims.
8. Miscellaneous
8.1 Neither party will make any public statement relating to the Agreement without the prior written approval of the other, except that inPowered may include Customer’s name and logo in its marketing, promotional materials, and customer lists.
8.2 inPowered reserves the right to continually evolve Content Distribution and its Services without notice. In the event inPowered chooses to discontinue the Content Distribution, inPowered will provide Customer with 30 days prior notice. inPowered will provide such notice of discontinuation when Customer logs into Content Distribution, on the inPowered website or by email, and the notice shall be effective immediately.
8.3 A party’s failure or delay to exercise any right will not operate as a waiver, nor will any single or partial exercise of any such right preclude any other exercise or the exercise of any other right, power, or remedy.