Programmatic
Terms & Conditions

These OAO Programmatic Partner Terms and Conditions (the “Terms”) govern, together with the terms and conditions of the OAO Insertion Order (the “IO”), the sale by OAO on behalf of OAO’s clients (collectively, “Clients” and individually, a “Client”) of advertising inventory (the “Inventory”) available on sites (including, without limitation, web sites and mobile and other electronic (including, without limitation, electronic mail) or digital applications or media) owned, operated or controlled by a Client (the “Sites”) for the running of advertising campaigns (the “Campaigns”) using the OAO Programmatic Partner’s (“Company’s”) ad server and other associated technologies (the “Technologies”).  Capitalized terms used herein and not otherwise defined in these Terms shall have the meanings ascribed to them in the IO.  In the event OAO Programmatic Partner (“Company”) has in place a written agreement with OAO relating to the provision of other services by OAO to Company, then for purposes of these Terms, the term “IO” shall mean such other agreement and in the event of any conflict between the terms and provision of the other agreement and these Terms, these Terms shall govern and control.

Company acknowledges that the purchasing of the Inventory, running of the Campaigns on the Sites and use of the Technologies is subject to the following provisions:

Except as otherwise expressly provided herein, the Technologies and any associated services provided to OAO by Company shall be used or accessed only by OAO.

With respect to any Campaigns or other use of the Technologies, OAO will require that a Client will not, and will not knowingly or negligently allow any third party to (to the extent applicable to a particular Campaign) (a) modify, obscure or prevent the display of all, or any part of, any Campaigns; (b) implement any click tracking or other monitoring of Campaigns; (c) display any Campaigns in pop-ups, pop-unders or other similar methods or by any other means; (d) interfere with the display of or frame any Sites or any page accessed by clicking on any Campaigns or auto-spawning of pages; (e) display any content between any Campaigns and any page accessed by clicking on those Campaigns; (f) directly or indirectly (i) offer incentives to or otherwise allow or require end users of the Sites to generate queries or impressions of or clicks on Campaigns through any automated, deceptive, fraudulent or other means (including, without limitation, click spam, robots, macro programs and Internet agents) or hijack an end user’s browser, or (ii) generate or modify impressions or clicks on Campaigns or perform or allow any other actions that are tracked and may serve as a basis for payment or analysis with respect to any Campaigns; (g) “crawl,” “spider,” index or in any non-transitory manner store or cache information obtained from the use of the Technologies; (h) engage in any misleading, fraudulent or deceptive conduct or pass incomplete or incorrect information or data with respect to Inventory; (i) engage in any commercial SMS/text messaging; (j) set, read, write, modify, or delete any cookie on any third party domain or use the Technologies to modify cookies on any domain not owned, operated or controlled by Client or otherwise have authorization to modify; (k) collect or use data provided by, from, or related to a third-party purchaser of Inventory or advertiser for purposes of re-targeting, creating, supplementing or amending user or Inventory profiles, or amending interest categories, or syndication or other distribution to third parties, unless such data collection and usage are authorized by or on behalf of the applicable third party; (l) disclose third-party purchaser availability, volume, bidding, or pricing data obtained through use of the Technologies with the written consent of such purchaser, except in connection with reporting of a Campaign; or (m) interfere or attempt to interfere with the proper working of the Technologies or any third party’s use thereof.

All right, title and interest in and to the Technologies and all components thereof and any data relating thereto provided by Company, remain with and belongs exclusively to the Company.  OAO will require that Clients acknowledge that the Technologies, including all components thereof, is a proprietary product and any and all intellectual property rights and other proprietary interests related thereto, together with all software, source code, future enhancements, improvements and additions, are owned exclusively by Company.  OAO will require that a Client shall not: (i) have any right to use (except as expressly provided in the IO or these Terms) or access or disclose the Technologies (or any component thereof) to any person or entity; (ii) alter, enhance, modify in any manner, or make derivative works, in whole or in part, of the Technologies; (iii) promote any software piracy systems, hacking, emulators or similar activities, or copy, distribute, reproduce, reverse engineer, reverse assemble, disassemble, decipher, or otherwise decompile or deconstruct the Technologies or attempt to gain unauthorized access to the Technologies or its respective related systems or networks for any purpose; (iv) use or attempt to use the Technologies in contravention of Client’s, OAO’s or the Company’s privacy or other service policy or any federal, state, local, foreign, or other applicable law, rules, or regulations of any governmental, regulatory or administrative organization; (v) interfere with or disrupt the integrity or performance of the Technologies or the data contained therein (including, without limitation, blocking any safety detection methods), or introduce into the Technologies any virus or other code or routine intended to disrupt or damage the Technologies or alter, damage or delete any information contained therein; (vi) license, sublicense, sell, resell, rent, lease, lend, transfer, assign, distribute, time share or otherwise commercially exploit or make the Technologies available to any third party without the prior written consent of OAO; (vii) otherwise act in an unlawful, fraudulent, malicious, or negligent manner when utilizing the Technologies; (viii) pass, assist or knowingly permit any person to pass, information to OAO, Company or any third party that could be used or recognized as personally identifiable information or which is deemed sensitive by any applicable Privacy Requirements (as hereinafter defined); (ix) modify, remove, or obscure any proprietary notices or legends of Company or any third party that appear in connection with the use of the Technologies; (x) create or attempt to create a substitute or similar technology through use of or access to the Technologies or proprietary information related thereto; or (xi) use the Technologies in violation of any published policies of Company.  OAO will require that each Client assume full responsibility for any use of the Technologies by any of Client’s employees, whether or not such parties are actually authorized by such Client to use the Technologies, and for ensuring that all such users abide by and comply with these Terms and the terms of the IO.  OAO will require that Clients further agree that they shall not access or use or attempt to access or use the Technologies by means of any automated program, expert system, electronic agent, or "bot."

OAO will require that Clients acknowledge that OAO and/or Company (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”).  OAO will require that Clients represent and warrant that Clients will at all applicable times and to the extent applicable to a particular Campaign (a) have a clearly labeled and easily accessible (via a prominent link on the Sites) 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 Clients’ jurisdiction, relating to each of the Sites and that discloses, among other matters, that Clients allows third parties to serve ads on the Sites, the collection of end user Data (as hereinafter defined) by third parties (including, without limitation, 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), (b) 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 and use of the Technologies, 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 third parties, (c) ensure 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 use of the Technologies, (d) 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 (e) be in compliance with all applicable laws relating to online advertising, privacy and data collection, including but not limited to the GDPR and CCPA.  For mobile or electronic mail applications, the opt-out mechanism shall describe how the end user can access a privacy device setting or unsubscribe, as applicable.  If a Client 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 third parties and the purposes for which such information may be used.  For purposes hereof, “Privacy Requirements” shall mean all applicable SRPs, laws, governmental regulations 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 Company with non-governmental certification or self-regulatory bodies, Company’s posted privacy policy and, for any mobile applications, the terms of service for the applicable mobile operating system. 

If OAO is delivering a Campaign program request to Company or a third party on behalf of a Client in connection with a Campaign sold directly by such Client to Company or a third party and a server-to-server connection is utilized in connection therewith, OAO will require the Client to be responsible for providing OAO in the program request, where applicable, notification that an end user (i) has opted out of or otherwise disabled behavioral tracking preferences through the end user’s device or browser, including but not limited to “Do Not Track” in Internet browsers, “Limit Ad Tracking” in iOS devices, and “Opt Out of Interest-Based Ads” in Android devices, and/or (ii) is located within the European Economic Area (“EEA”). 

OAO will require that Clients further acknowledge that while Company or a third party will not own the data Company, the third party or Clients collect from end users (the “Data”), Company or the third party may: (i) capture and maintain the Data in connection with the use of the Technologies or the promotion of the Campaigns, as the case may be; (ii) compile, use and disclose aggregated statistics including the Data for internal or marketing use (provided that no such use shall include any information that can identify OAO or Clients or any end user of Clients); and (iii) disclose any Data if required by law or valid order of a court or other governmental authority.  OAO will require that Clients acknowledge that OAO has no control over the content of the Data and OAO shall have no liability or responsibility for the disclosure of any personally-identifiable information of any of Clients’ end users.  OAO will require that Clients represent and warrant that Clients will not transfer or transmit any personally identifiable information about an end user to OAO, Company or any third party.  To the extent Company directly or indirectly acts as a controller or processor of any Data that is regulated by the GDPR, CCPA or other applicable law, rule or regulation now or hereafter in effect, Company shall comply with all provisions of such laws applicable to Company. 

OAO will require that each Client acknowledge that OAO, Company or a third party may (a) identify Client in connection with Campaigns that run within such Client’s ad system and (b) share with advertisers the Sites’ site-specific statistics, the Sites’ URLs and related information collected by through the use of the Technologies.

Company represents, warrants, and covenants that any data (including, without limitation, advertisements) furnished by Company to OAO do not and shall not contain any content, material, advertising or services that violates any applicable law or regulation or any published policy of Company or a third party, 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, will not be personal web pages or blank pages with no content, and that such data and the Sites will not contain any content that (i) promotes violence, the use of firearms or other weapons, or illegal activities (e.g., discrimination, hate speech, copyright circumvention), (ii) may be harmful, abusive, threatening, defamatory, libelous, deceptive, pornographic, obscene or sexually explicit, (iii) references alcohol, tobacco or gambling or promotes the use of illegal substances, (iv) contains spyware, viruses or other potential harmful code, or (v) promotes activities generally understood as Internet abuse.  Company also represents and warrants that Company is and will at all relevant times be in compliance with all applicable laws, regulations, court or government agency orders, decrees and policies (collectively, “Laws”), including, without limitation, the GDPR, CCPA and Children’s Online Privacy Protection Act of 1998 (“COPPA”), as amended.

OAO will require that each Client represent, warrant, and covenant that any data (including, without limitation, advertisements) furnished by Client to OAO and the Sites utilized in connection with the Technologies do not and shall not contain any content, material, advertising or services that violates any applicable law or regulation or any published policy of Company or a third party, 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, will not be personal web pages or blank pages with no content, and that such data and the Sites will not contain any content that (i) promotes violence, the use of firearms or other weapons, or illegal activities (e.g., discrimination, hate speech, copyright circumvention), (ii) may be harmful, abusive, threatening, defamatory, libelous, deceptive, pornographic, obscene or sexually explicit, (iii) references alcohol, tobacco or gambling or promotes the use of illegal substances, (iv) contains spyware, viruses or other potential harmful code, or (v) promotes activities generally understood as Internet abuse.  OAO will require that each Client also represent and warrant that Client is and will at all relevant times be in compliance with all applicable laws, regulations, court or government agency orders, decrees and policies (collectively, “Laws”), including, without limitation, COPPA.  Notwithstanding the foregoing, OAO will require that Clients agree that without the prior written approval of OAO, Clients shall not run any Campaigns using any services provided by OAO or Company on any of the Sites (“Children’s Sites”) where such Campaigns are directed to children (i) under the age of thirteen (13) who reside in the United States or any territory thereof, or (ii) under the age of fifteen (15) who reside in the EEA, as determined by the laws of each country in the EEA, or (ii) under the age specified by the laws of any other applicable jurisdiction. Without limiting the generality of the foregoing, OAO will require that Clients shall not, except to the extent permitted by applicable law, (x) create profiles of users or visitors of Sites, (y) purchase, sell, place, facilitate the placement of behaviorally targeted ads on Children’s Sites, or (z) collect personal information (as defined by COPPA), personal data (as defined by the GDPR), or comparable data under any similar law of any jurisdiction, about users or visitors of Children’s Sites.

OAO will require that Clients acknowledge that use of the Technologies may be terminated at any time by OAO or Company.  In addition, OAO may terminate a Client’s right to access and use the Technologies if the Client breaches any of these Terms or the terms and conditions of the IO.

All information, including the terms of the IO and these Terms and non-public information obtained by Company in connection with OAO’s and Clients’ use of the Technologies or in connection with the Campaigns (collectively, “Confidential Information”) shall be held in strict confidence by Company and shall not be disclosed to any third party without the written consent of OAO.  Confidential Information shall not include information that (i) is or becomes generally known to the public through no breach of any confidentiality obligation; (ii) is rightfully known to Company at the time of disclosure to Company without violation of any confidentiality restriction and without any restriction on Company’s further use or disclosure of same; (iii) is independently developed by Company without any use of or reference to the Confidential Information as demonstrated by documentary evidence; or (iv) is received rightfully and without confidential limitation by Company from a third party which, to the best knowledge of Company, is not legally prohibited from disclosing such information.  Company shall take reasonable measures to maintain the confidentiality of the Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of a similar nature.  Company shall not use any Confidential Information for any purpose other than in connection with the performance of its obligations under the IO and these Terms.  Company may disclose the Confidential Information to its employees or consultants with a need to know for the performance of Company’s obligations under the IO and these Terms (subject to disclosure restrictions comparable to those set forth herein), and shall remain responsible for all use of the Confidential Information by such employees or consultants.  Furthermore, Company may disclose the Confidential Information (i) to the extent required by law or pursuant to the order or requirement of, or in connection with proceedings before, a court, administrative agency or other governmental body, provided that before such disclosure is made Company has, to the extent permissible by law, made reasonable efforts to notify OAO of the intended disclosure to allow OAO or the Client an opportunity to object to the disclosure; and (ii) to the extent required and on a confidential basis to its legal and/or financial advisor.  In addition, Company will not make any public announcement regarding the existence of the IO or these Terms without the prior written consent of OAO.  Company acknowledges that in the event of a breach of the provisions of this paragraph, substantial injury could result to OAO or Clients and money damages may not be a sufficient remedy for such breach. Therefore, in the event that Company engages in, or threatens to engage in any act which violates any provision hereof, OAO and/or Clients will have no adequate remedy in money or damages, and, accordingly, shall be entitled, in addition to all other remedies which may be available to them under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms hereof.  Neither OAO nor Clients shall be required to post a bond or other security in connection with the granting of any such relief

DISCLAIMER AND LIMITATION OF LIABILITY:  THE TECHNOLOGIES ARE 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 IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.  COMPANY MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, THAT USE OF, ACCESS TO OR OPERATION OF THE TECHNOLOGIES WILL BE UNINTERRUPTED OR ERROR FREE, AND THAT DATA TRANSMITTED USING THE TECHNOLOGIES WILL NOT BE IRRETRIEVABLY LOST.  OAO OR CLIENT SHALL BE SOLELY RESPONSIBLE FOR MAINTAINING BACK-UP COPIES OF ANY DATA PROVIDED BY OAO OR CLIENT TO COMPANY FOR USE IN OR IN CONJUNCTION THE TECHNOLOGIES.  EXCEPT FOR COMPANY’S INDEMNIFICATION OBLIGATIONS OR FRAUD, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL OAO OR COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE IO (INCLUDING THESE TERMS), 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 OAO OR COMPANY OR COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  WITHOUT LIMITING ANY OF THE FOREGOING, NEITHER OAO NOR COMPANY MAKES ANY EXPRESS OR IMPLIED GUARANTEES, REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE REVENUE TO BE GENERATED OR PLACEMENT OF ADVERTISEMENTS FROM USING THE TECHNOLOGIES HEREUNDER.  IN NO CASE SHALL OAO’S MAXIMUM LIABILITY ARISING OUT OF THE IO OR THESE TERMS, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED IN THE AGGREGATE, THE SUM OF THE AMOUNT OF FEES PAID TO COMPANY RELATING TO AN APPLICABLE CLIENT’S USE OF THE TECHNOLOGIES IN THE MOST RECENT SIX (6) MONTHS TO WHICH THE CLAIM RELATES.

Company will defend, indemnify and hold harmless OAO, Clients and any third party and their respective members, officers, directors, employees and agents (collectively, the “Indemnitees”), from and against any and all claims, demands, suits or proceedings, liabilities, damages, costs and expenses (including, but not limited to, settlement costs and reasonable attorneys' fees) arising out of (i) Company’s breach or alleged breach of any representation, warranty, covenant, term or condition set forth in these Terms or the IO, or (ii) any claim that Company has infringed or allegedly infringed any intellectual property right of a third party.  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 or Company may, at its own expense, assist in the defense if it so chooses, and no settlement intended to bind OAO or Company and which requires an Indemnitee to (x) admit liability or to pay any money or (y) imposes a non-monetary obligation on an Indemnitee, and does not include an unconditional release of an Indemnitee, shall be final without OAO’s or Company’s, as the case may be, written consent.  OAO and/or Company, as the case may be, shall reasonably cooperate with Company in connection with any such claim.

The IO and these Terms and all disputes, claims, actions, suits or other proceedings arising thereunder and hereunder shall be governed by, and construed in accordance with, the substantive law of the State of New York applicable to agreements wholly made and to be performed within the State of New York.  Company and OAO irrevocably submit to the sole and exclusive jurisdiction of the courts of New York State and the Federal courts of the Southern District of New York, situated in the City, County and State of New York.  Company and OAO irrevocably consent to the exercise of personal jurisdiction over them by such courts and waive any right to plead, claim or allege that New York is an inconvenient forum.  The prevailing party in any action or other proceeding shall be entitled to recovery of its reasonable attorneys' fees from the other party in addition to any other award of damages from the court.

The IO may be assigned by OAO at any time to any successor company.  Company may not assign its rights under the IO without the express written consent of OAO.  Any attempted assignment without such consent shall be null and void and deemed a breach of Company’s obligations.  The IO shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties thereto.  No person other than Company and OAO and their successors and permitted assigns is intended to be a beneficiary of the IO or these Terms.  No assignment to any permitted assignee shall be effective until such permitted assignee agrees in writing to be bound by and comply with the terms of the IO and these Terms.

The failure of OAO to enforce any right or obligation under the IO or these Terms shall not be deemed a waiver thereof and shall not prevent the later enforcement of such right or obligation.

Neither OAO nor Company shall be liable to the other party arising out of delays or failures to perform under the IO or these Terms to the extent that any such delays or failures result from any cause beyond the reasonable control of the party affected, including without limitation fire, earthquake, explosion, casualty, strike, war, riot, pandemic, civil disturbance, act of God, any state of national law, decree or ordinance, or any executive or judicial order (a “force majeure event”); provided, that the affected party promptly informs the other of all relevant information; further provided, however, that under no circumstances shall either party’s obligations to pay any fees due the other party be in any way affected, impaired or excused, irrespective of the reason for such delay or failure to perform.

All notices and other communications under the IO or these Terms shall be in writing and shall be deemed to have been duly given if delivered personally, by overnight courier such as Federal Express (for which a receipt is obtained), sent by email, or mailed by certified or registered mail, postage prepaid, return receipt requested, to the parties at the addresses set forth in the IO, or at such other addresses as may be specified by like notice.  All notices shall be deemed given on the date of delivery if delivered personally, sent by email or sent by overnight courier or two (2) business days after mailing.  The respective attorneys for the parties are authorized to give any notice which a party is required to give or may give under the IO or these Terms.  Any failure or refusal to accept a notice shall not invalidate such notice and the same shall be deemed given in accordance with the provisions of this paragraph or, in the case of notice personally delivered or sent by overnight courier, on the date of such failure or refusal.

If any term of the IO or these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then all of the remaining terms will remain in full force and effect as if such invalid or unenforceable term had never been included and shall be liberally construed so as to effectuate the purpose and intent of the parties.

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 the Technologies after such period shall constitute Company's acceptance of such Modifications.

Last Updated:  September 18, 2020