DV360
Terms & Conditions
These OAO DV 360 Terms and Conditions (the “Terms”) govern, together with the terms and conditions of the OAO DV 360 Addendum (the “Addendum”), Company’s use of DV 360 provided to OAO by MHI. Capitalized terms used herein and not otherwise defined in these Terms shall have the meanings ascribed to them in the Addendum.
Use of DV 360 is subject to the following provisions:
Responsibility for Fees for Services. Company is responsible for all fees as set forth in the Addendum, which are incurred through the date Company ceases to use DV 360. Company’s use of DV 360 is at all times contingent upon Company’s payment of applicable fees pursuant to the Services Agreement and the Addendum. Company shall be solely responsible for any sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of Company’s use of DV 360.
Company Obligations.
A. Company acknowledges and understands that the use of DV 360 by OAO and Company is subject to terms and conditions set forth in a separate agreement between MHI and OAO (the “MHI Agreement”). The MHI Agreement grants the right to OAO to resell DV 360. Company will not and will not assist or knowingly permit any third party to, (i) provide or make available to MHI any information that could be recognized as personally identifiable information; (ii) misappropriate any part of DV 360 or modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect of DV 360 or any part thereof; (iii) damage or tamper with any part of DV 360; (iv) breach any security measure for DV 360; or (v) provide any Ad that when viewed or clicked on by an end user causes such end user’s device to download any software application. Company shall obtain and provide MHI with all necessary rights, licenses, consents and authorizations to enable MHI to store and deliver advertising content via the MHI platform and to take such other actions as may be necessary to enable MHI to fulfill its obligations under the MHI Agreement. All provisions applicable to OAO, other than payment obligations between MightyHive and OAO, as set forth in the MHI specifications and operational requirements available at https://www.support.mightyhive.com (the “MightyHive Terms”) shall apply to Company and Company’s use of DV 360 as provided in the Addendum and these Terms. The MightyHive Terms are incorporated in these Terms by reference herein. Company should read the MightyHive Terms before accepting the Addendum. Company acknowledges and agrees that MightyHive reserves the right to modify and amend the MightyHive Terms from time to time and Company acknowledges its obligation to review the MightyHive Terms periodically for updates.
B. If Company breaches the obligations set forth in the Addendum or these Terms, then OAO shall have the right to immediately suspend or terminate Company’s use of DV 360. If DV 360 is terminated by OAO due to a breach by Company, in addition to any other remedies available to OAO under the Services Agreement or at law or in equity, Company is required to promptly pay (i.e. within thirty (30) days of its receipt of written notice (by email, regular mail or overnight courier) from OAO), any past due monies owed to OAO pursuant to the Services Agreement, and must promptly deactivate all of Company’s Campaigns that are utilizing DV 360.
C. OAO and/or MHI (i) may be members of and/or adhere to the self-regulatory principles (“SRPs”) of the Network Advertising Initiative (“NAI”), Digital Advertising Alliance, European Interactive Digital Advertising Alliance and other organizations performing similar functions, and (ii) are subject to all applicable laws relating to the privacy rights of end users, including, without limitation, the European Union General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”). Company represents and warrants that Company will at all times comply with all applicable Privacy Requirements (as hereinafter defined), including without limitation and to the extent applicable to Company in connection with Company’s use of DV 360, (a) complying with all requirements to the extent Company is deemed to be a controller or processor of data as such terms are defined in the GDPR; (b) ensuring that third parties with whom Company has a direct relationship with in connection with any Campaigns (i) have a clearly labeled and easily accessible (via a prominent link) privacy policy in place that complies with the Privacy Requirements of either (x) the end user’s jurisdiction, or (y) if there are no such requirements, with the third party’s jurisdiction, and that discloses, among other matters, that the third parties allow Company to run Campaigns on the third party’s web sites and display, video, television, audio and other channels (which may include e-mail, mobile sites, mobile applications and other applications (collectively, the “Sites”) and the collection of end user data by Company and/or such third parties (including non-personally identifiable information such as browser type, time and date, browsing or transaction activity, subject of advertisements clicked or scrolled over, or a platform-provided identifier during user’s visits to the Sites that assists advertisers, among other things, in providing advertisements about products and services that may be of interest to the end user), (ii provide end users of each of the Sites with clear and comprehensive information about cookies, web beacons and other information stored or accessed on the end user’s device in connection with the Campaigns, including information about the end users’ options for cookie management, a description of the information collected and how, and for what purpose, data collected will be used or transmitted to Company or such third parties, (iii) ensure that the Sites provide a mechanism for obtaining and that an end user gives express consent under all Privacy Requirements to the storing and accessing of cookies and other information on the end user’s device in connection with the Campaigns, (iv) provide end users of each of the Sites with a clear and specific opt-out mechanism which shall include a specific link to the NAI’s opt-out page accessible via its consumer website at www.networkadvertising.org or to another SRPs opt-out page (e.g., http://www.aboutads.info, http://www.youronlinechoices.eu) and, if the third party collects, processes or discloses information that identifies or is capable of identifying with reasonable specificity the actual physical location of an end user or device for advertising purposes, the Sites shall obtain express (opt-in) consent from end users and the Sites shall prominently post a notice to end users that the end user’s location may be shared with Company or such third parties and the purposes for which such information may be used, and (v) be in compliance with all applicable laws relating to online advertising, privacy and data collection. . For purposes hereof, “Privacy Requirements” shall mean all applicable SRPs, laws, governmental regulations (including, without limitation, the GDPR and CCPA) and court or government agency orders, decrees and policies relating to privacy rights or the delivery of marketing and advertising communications, written agreements between OAO and/or MHI with non-governmental certification or self-regulatory bodies, MHI’s posted privacy policy and, for any mobile applications, the terms of service for the applicable mobile operating system. By use of DV 360, Company authorizes MHI (either acting directly or in conjunction with MHI’s resale of DV 360 to OAO) and any sub-processor retained by MHI, to process personal data to the extent necessary in connection with Company’s use of DV 360 and as otherwise required or permitted by all applicable laws and regulations, including the processing of such data outside the jurisdiction in which it was collected. To the extent OAO would be deemed a “controller” or “processor” as those terms are defined in the GDPR, if OAO was the user of DV 360, Company shall be deemed a controller” or “processor,” as applicable. In addition, to the extent MHI processes data (either directly or via DV 360) in countries which do not ensure an adequate level of data protection, the MHI Agreement provides that the Standard Contractual Clauses (the “Clauses”) adopted pursuant to Article 26(2) of Directive 95/46/EC shall apply to data processed in such areas. In such event, Company agrees to be bound by the Clauses in connection with Company’s continued use of DV 360.
D. Company represents, warrants, and covenants that neither the Campaigns nor any data furnished by Company to OAO or MHI in connection with the use of DV 360 do not and shall not contain any content, material, advertising or services that violates any applicable law or regulation or infringes upon any right of any person, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other third party right. Company also represents and warrants that Company and the Campaigns are and will at all relevant times be in compliance with all applicable laws, regulations, court or government agency orders, decrees and policies, including, without limitation, the Children’s Online Privacy Protection Act of 1998, as amended, and that the Campaigns will not prevent the user from maintaining control over such user’s computing environment.
E. As used herein the term “Ad” or “Ads” means advertising content that is served as part of the Campaigns. Company is responsible for all Ads served on the Sites as part of the Campaigns, including the content of the Ads and ensuring that all Ads comply with the following standards:
(a) Ads must not use the phrases "click here," “click +1” or any phrase that includes "click" as a call-to-action. This includes phrases that lead into an Ad’s display URL, such as "See this site." Ads must not contain strobing, flashing backgrounds, or otherwise distracting elements. Google reserves the right to reject or pause any Ad in its sole discretion for any or no reason, including but not limited to failure to meet exchange guidelines.
(b) Promotion of the following goods, services and related websites are prohibited:
escort services, prostitution, or other adult sexual services;
drugs, drug paraphernalia, or aids to pass drug tests;
websites that promote hacking by providing instructions or equipment to illegally access or tamper with software, servers, cell phones, or websites;
tobacco or tobacco-related products (including cigarettes, cigars, tobacco pipes, rolling papers, electronic cigarettes, and e-cigarette cartridges);
Gambling, sports betting, and online casino games (including gambling-related promotional products, gambling-related tutoring and educational materials, gambling-related software, and gambling-related information such as tips, odds, handicapping, and sports picks);
weapons or devices designed to cause serious harm or injury, including guns, gun parts or hardware, ammunition, bombs, knives, throwing stars, and brass knuckles;
websites infected with malware, or the sale of malicious software;
websites that use phishing techniques (i.e. attempt to obtain users' personal information by disguising their website to look like another website);
websites that exploit online advertising systems for financial gain, distribute spam to large audiences or violate MHI’s Webmaster Guidelines (available at http://www.google.com/support/webmasters/bin/answer.py?answer=35769 or successor URL, as modified from time to time).
(c) Company may not engage in unclear, deceptive, or harassing sales practices. The Ads and other promotional or marketing activities undertaken by Company using DV 360 shall not be deceptive, misleading, obscene, defamatory or illegal, and will not infringe, misappropriate or violate any intellectual property or other rights of any third party.
(d) Company may not misrepresent its relationship with Google, including but not limited to:
Claiming to be contacting advertisers on behalf of Google;
Claiming to be Google;
Claiming or implying that Company has a special working relationship or partnership with Google;
Claiming that Google gives Company a discount or special pricing;
Claiming that Google gives Company access to special ad positions.
F. Company understands and acknowledges that Google invoices MHI periodically (e.g., monthly) for Company’s use of DV 360 and MHI will similarly invoice OAO for Company’s use of DV 360. The Google invoice to MHI is final and binding on the parties. Any errors made by Company in the use of DV 360 are the responsibility of Company. OAO will invoice on a periodic basis (generally monthly) by OAO for Company’s use of DV 360. Payments due from Company to OAO for use of DV 360 shall be paid by Company to OAO NET 30 days from the day payment is invoiced to Company by OAO. Company shall maintain Errors & Omissions insurance in an amount not less than five (5) times the dollar amount (averaged over a three (3) month period) spent by Company for Ad purchases using DV 360 and shall maintain data protection insurance against disclosure of end users’ personally identifiable information and shall name OAO as an additional insured on both policies.Data. While Company may own all data resulting from Company’s use of DV 360, Company understands and acknowledges that MHI may use and disclose the data (i) in aggregate and anonymized form, which will not include information that identifies or would reasonably be expected to identify Company, any of the Sites or any end user, and (ii) to provide the services and perform MHI’s other obligations and enforce its rights under the MHI Agreement.
Confidentiality. DV 360 shall constitute, to the extent applicable, Confidential Information for purposes of the Services Agreement. Company shall not use the MightyHive or DV 360 (or any other Google) names or logos (or any related names or logos) in general marketing materials relating to DV 360 without the express prior written approval of OAO and MightyHive.
Indemnity. In addition to any indemnities set forth in the Services Agreement, Company shall defend, indemnify and hold harmless OAO and its members, officers, directors, employees and agents (collectively, the “Indemnitees”) from and against any and all claims, damages, losses, liabilities, costs (including reasonable attorneys’ fees) and other expenses incurred by any of the Indemnitees resulting from (i) Company’s breach or alleged breach of any representation, warranty, covenant, term or condition set forth in these Terms or the Addendum, or (ii) any any use of DV 360 by Company or its authorized representatives, which use is in violation of the obligations of Company pursuant to the Services Agreement, the Addendum or these Terms, or used in a manner not prescribed in writing by OAO or MHI. OAO shall promptly notify Company of any such claim and Company shall have the sole and exclusive authority to defend and/or settle any such claim; provided, however, that OAO may, at its own expense, assist in the defense if it so chooses, and no settlement intended to bind OAO and which requires an Indemnitee to admit liability or to pay any money shall be final without OAO’s prior written consent. Any settlement shall also include an unconditional release of the Indemnitees from all liability on the claim. OAO shall reasonably cooperate with Company in connection with any such claim. Notwithstanding the foregoing, the failure by OAO to notify Company will not relieve Company of any liability that Company may have, except to the extent that such failure materially prejudices Company’s legal rights.
Amendment. OAO reserves the right to modify, amend and supplement (collectively, “Modifications”) these Terms at any time without prior notice to Company. Any Modifications will not apply retroactively but will become effective twenty (20) days after they are posted unless otherwise provided in the Modifications. Company's continued use of DV 360 after such period shall constitute Company's acceptance of such Modifications.
Termination of DV 360. Company understands and acknowledges that DV 360 may be terminated by MightyHive at any time upon reasonable prior written notice to OAO. Upon receipt of any such notice, OAO will promptly notify Company thereof by email, regular mail or overnight courier.
Disclaimer and Limitation of Liability. DV 360 IS PROVIDED “AS IS" AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NEITHER OAO NOR MHI MAKES ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT USE OF, ACCESS TO OR OPERATION OF DV 360 WILL BE UNINTERRUPTED OR ERROR FREE, AND THAT DATA TRANSMITTED USING DV 360 WILL NOT BE IRRETRIEVABLY LOST. COMPANY ACKNOWLEDGES THAT DV 360 OPERATES IN REAL TIME AND THAT COMPANY HAS NO RECOURSE OR CLAIM FOR ANY TRANSACTION THAT OCCURS, OR DOES NOT OCCUR, BASED ON ERRONEOUS INFORMATION DELIVERED OR INPUT BY COMPANY. IN NO EVENT WILL OAO BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS ADDENDUM, HOWEVER CAUSED AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING ANY OF THE FOREGOING, OAO MAKES NO EXPRESS OR IMPLIED GUARANTEES, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE REVENUE TO BE GENERATED FROM USE OF DV 360.
Third Party Use of DV 360. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE ADDENDUM OR THESE TERMS, COMPANY SHALL NOT PERMIT ANY CUSTOMER OF COMPANY OR OTHER THIRD PARTY TO AT ANY TIME USE DV 360 WITHOUT THE PRIOR WRITTEN CONSENT OF OAO AND UPON SUCH TERMS AND CONDITIONS AS MAY BE PRESCRIBED BY OAO. IN THE EVENT OF ANY BREACH OF THIS PROVISION BY COMPANY, COMPANY SHALL BE LIABLE TO OAO FOR ALL COSTS, FEES AND EXPENSES, INCLUDING, WITHOUT LIMITATION, INCIDENTAL, CONSEQUENTIAL AND SPECIAL DAMAGES, LOST PROFITS AND OTHER INDIRECT DAMAGES, INCURRED OR SUFFERED BY OAO AS A RESULT OF SUCH BREACH. ANY BREACH BY COMPANY OF THE PROHIBITION IN THIS SECTION SHALL ALSO BE SUBJECT TO THE INDEMNIFICATION PROVISIONS OF THE ADDENDUM, THE SERVICES AGREEMENT AND THESE TERMS.
Last Updated: January 23, 2020