THESE DIGITAL MEDIA BUY STANDARD TERMS AND CONDITIONS (these “Standard Terms”) are made by and between Grindr LLC (“Grindr”) and (“Agency”). Grindr and Agency may each be referred to herein as a “Party,” and together the “Parties.”
1. Definitions. Capitalized terms used but not otherwise defined herein, shall have the meaning ascribed to them in Exhibit A.
2. Insertion Orders.
2.1 IO Details. From time to time, Grindr and Agency may issue IOs, which specify: (i) the type(s) and total amount(s) of Purchased Inventory, (ii) the daily spending limit, which may be modified by Parties upon mutual written agreement (via email by an Authorized Representative is sufficient); (iii) the price(s) for such Purchased Inventory, (iv) the maximum amount of money to be spent pursuant to the IO, and (iv) the start and end dates of the campaign. Other items that may be included are, without limitation, special Ad delivery scheduling and/or Ad placement requirements; provided, that any such additional items must be accepted by Grindr in accordance with Section 2.2.
2.2 Availability; Acceptance. Grindr may accept or deny an IO in its sole and absolute discretion, and will make commercially reasonable efforts to notify Agency if the specified inventory is not available. Acceptance of an IO and these Standard Terms will be deemed the earlier of: (i) written approval (via email by an Authorized Representative is acceptable) of the IO by Grindr and Agency, or (ii) the display of the first Ad applicable to such IO by Grindr.
2.3 Modifications; Revisions. Changes to a submitted IO and any accepted IOs may be proposed by either Party; provided, that, such changes shall only become effective once accepted by the other Party's Authorized Representative (defined below) via email. Grindr may, but is not required to, provide a revised copy of the IO upon the proper acceptance of such changes made pursuant to this Section. For the purposes of approval under these Standard Terms, "Authorized Representative" means the following persons (or their designees), for Grindr.
3. Ad Placement and Positioning.
3.1 Compliance with IO. Grindr will comply with the requirements set forth in the IO, including Ad placement restrictions that are expressly agreed upon by Grindr.
3.2 Technical Specifications. Grindr will provide or otherwise make available to Agency the final technical specifications to its inventory prior to the start of any Ad campaign.
3.3 Grindr Properties. Agency, on behalf of its Advertisers and itself, agrees and acknowledges its understanding of the nature of Grindr's business and of Grindr's properties and the type of content that is being displayed thereof. As a result, Agency hereby disclaims and revokes any right to object to the placement of an Ad based on the nature of Grindr's business or of its properties. Advertiser's sole and exclusive remedy is to request in writing that Grindr remove the Ads from Grindr Properties. After Agency notifies Grindr that the Advertiser would like to remove certain Ads, Grindr will make commercially reasonable efforts to remove the Ads from the Grindr Properties within three (3) business days. Agency and Advertiser each acknowledge and agree that no Advertiser will be entitled to any remedy for any placement of an Ad resulting from Ads placed at locations other than the Sites.
4. Tracking and Reporting.
4.1 Campaign Start. Grindr will exercise commercially reasonable efforts to launch a campaign within two (2) business days after an IO is submitted.
4.2 Ad Serving and Tracking. Grindr will track delivery through Grindr's ad servers and, provided that Grindr has approved in writing a Third Party Ad Server to run on its properties, Agency may track delivery through such Third Party Ad Server. All Third Party Ad Servers and related technology are subject to Grindr's evaluation of such technology, which shall be determined by Grindr in its sole and absolute discretion. Agency may not substitute the specified Third Party Ad Server without Grindr's prior written consent.
4.3 Controlling Measurement. The measurement used for invoicing advertising fees under an IO ("Controlling Measurement") will be utilizing the reporting and metrics tracked by Grindr's systems (which shall be determined by Grindr in its sole and absolute discretion). Agency may utilize its own internal metrics and reporting systems; provided, that all such third-party tracking tools must be vetted and approved by Grindr and receiving prior written approval prior to implementation of such technology.
4.4 Discrepant Measurement. In the event of any difference between the Controlling Measurement and any measurements made by Agency and/or Advertiser, the Controlling Measurement shall be used for the calculation of all fees payable for the Purchased Inventory.
4.4Third Party Ad Servers. All Third Party Ad Servers must be preapproved in writing by Grindr, and such determination may be made in Grindr's sole and absolute discretion. Upon written notification by Agency of a non-functioning Third Party Ad Server, Grindr will have two (2) business days to suspend delivery.
4.5 Grindr Reporting. Grindr will make reporting available to Agency electronically or in writing (e-mail acceptable). Once Grindr has provided the online or electronic report, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to provision of Grindr's invoice for such period.
4.6 Reporting Failure. If Agency informs Grindr that Grindr has failed to deliver a report, Grindr will cure such failure within fifteen (15) business days of receipt of such notice, by sending Agency a report via email or some other form of electronic transmission. Failure to cure will result in a suspension of payment for all activity for which data is incomplete or missing until Grindr delivers reasonable evidence of performance.
5. Payment and Payment Liability.
5.1 Timing of Invoices. Agency shall be invoiced on a monthly basis and shall be sent by Grindr after the applicable billing calendar month. Invoices will be sent to Agency's billing address as set forth on the IO and will include information as required for invoicing on the IO, such as the IO number, Advertiser name, brand name or campaign name, and any number or other identifiable reference stated.
5.2 Payment Date. Agency will make payment within thirty (30) days from the date of invoice. Grindr may notify Agency that it has not received payment in such time period and whether it intends to seek payment directly from Advertiser subject to Section 5.3. If Advertiser's or Agency's credit is or becomes impaired, Grindr may require payment in advance.
5.3 Payment Liability. Agency is liable for all payments to the extent proceeds have been provided by Advertiser to Agency for Ads placed in accordance with the IO or Agency has authorized an IO without Advertiser's approval. For sums not cleared to Agency and authorized by Advertiser, Grindr agrees to hold Advertiser solely liable. Grindr understands that Advertiser is Agency's disclosed principal and Agency, as an agent, has no obligations relating to such payments, either joint or several, except as specifically set forth in this Section and Section 10.2. Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis.
5.4 Confirmation of Agency. Upon request, Agency will make available to Grindr, Agency's written agreement with Advertiser and written certification by one of Agency's officers of the relationship between Agency and Advertiser. Such written confirmation must include Advertiser's acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Grindr, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.
6. Term.The term of these Standard Terms shall begin on the Effective Date, and shall continue for a period of one (1) year (the "Initial Term"), unless earlier terminated in accordance with the terms provided herein. Unless either Party provides notice of its intent not to renew, these Standard Terms shall automatically renew for consecutive one (1) year periods (each, an "Additional Term"). The Initial Term along with all Additional Terms shall collectively be referred to as the Term.
7. Termination; Cancellation.
7.1 Without Cause. Either Party may terminate these Standard Terms by providing three (3) business days' written notice; provided that these Standard Terms shall continue for so long as there is an active IO. Unless designated on the IO as non-cancelable, either Party may cancel the entire IO, or any portion thereof, by providing at least two (2) business days prior to the campaign start date.
7.2 Effect of Termination Without Cause. Upon termination or expiration of this these Standard Terms, any Ad campaigns currently in effect may, at Grindr's option, be immediately stopped and (except in cases where Grindr has terminated without cause pursuant to Section 7.1) all amounts payable to Grindr under such Ad campaigns shall become immediately due and payable.
7.3 For Cause. Either Grindr or Agency may terminate an IO at any time if the other Party is in material breach of its obligations hereunder, which breach is not cured within ten (10) days after receipt of written notice thereof from the non-breaching Party, except as otherwise stated herein with regard to specific breaches. Additionally, if Agency or Advertiser breaches its obligations by violating the Policy three times, even if Agency or Advertiser cures such breaches, then Grindr may terminate the IO or placements associated with such breach upon written notice. If Agency or Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Grindr to Agency, then Grindr may terminate the IO and/or placements associated with such breach upon written notice.
8. Force Majeure.
8.1 Generally. Excluding payment obligations, neither Agency nor Grindr will be liable for delay or default in the performance of its respective obligations under these Standard Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes ("Force Majeure event"). If Grindr suffers such a Force Majeure event, Grindr will make reasonable efforts within fifteen (15) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or make-good is reasonably acceptable to Agency, Grindr will allow Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase.
8.2 Cancellation. If a Force Majeure event has continued for five (5) business days, Grindr and/or Agency has the right to cancel the remainder of the IO(s) without penalty.
9. Ad Materials.
9.1 Submission. A condition precedent to Grindr attempting to serve up the Purchase Inventory of Ads, is submission by Agency of the Advertising Materials prior to and in accordance with Grindr's then-existing Policies.
9.2 Late Creative. If Advertising Materials are not received by the IO start date, Grindr will not begin the applicable campaign. If Advertising Materials are late based on the Policies, Grindr is not required to guarantee full delivery of the IO.
9.4 Ad Tags. When applicable, Third Party tags will be approved by Grindr in its sole and absolute discretion. Grindr shall implement any such approved Third Party tags so that the Ads can be tracked (subject to Section 13).
9.5 Trademark Usage. Agency and/or Advertiser, will not use Grindr's trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other's prior written approval.
10.1 By Advertiser. Advertiser will defend, indemnify, and hold harmless Grindr and each of its Affiliates and their respective Representatives from damages, liabilities, costs, and expenses (including attorneys' fees) ("Losses") resulting from any claim, demand, judgment, or proceeding ("Claims") brought by a Third Party resulting from (i) Advertiser's alleged breach of its confidentiality or data privacy obligations or of Advertiser's representations and warranties hereunder, (ii) Advertiser's violation of Policies, or (iii) the content or subject matter of any Ad or Advertising Materials to the extent used by Grindr in accordance with these Terms or an IO.
10.2 By Agency. Agency represents and warrants that it has the authority as Advertiser's agent to bind Advertiser to these Terms and each IO, and that all of Agency's actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Grindr and each of its Affiliates and Representatives from Losses resulting from (i) Agency's alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached any of its representations and warranties hereunder.
10.3 Procedure. Grindr and its indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party's obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party's expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on or admits any guilt of an indemnified party(s) without its prior written consent.
11. Limitation of Liability.
Excluding Agency's and Advertiser's, obligations under Section 10, damages that result from a breach of sections 12 and 13, or intentional misconduct by Agency or Advertiser, in no event will any Party be liable for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever, including, but not limited to, damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
12.1 Definitions and Obligations. "Confidential Information" will include (i) all information marked as "Confidential," "Proprietary," or similar legend by the disclosing party ("Discloser") when given to the receiving party ("Recipient"); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that IO Details (as defined below) shall be considered Grindr's Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser's Confidential Information other than as provided for on the IO.
12.2 Exceptions. The term "Confidential Information" will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient's possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information of the Discloser; or (v) was communicated by an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
13. Data Privacy.
13.1 Use of Collected Data.
(a) Advertiser will not: (A) use Collected Data for Repurposing; (B) disclose IO Details of Grindr or Site Data to any Affiliate or Third Party.
(b)Advertiser and Agency (each a "Transferring Party") will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality, data privacy, and non-use obligations at least as restrictive as those on the Transferring Party set forth in these Standard Terms.
13.3 Compliance with Law. Agency and Advertiser will at all times comply with all federal, state, and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
13.4 Agency Use of Data. Agency will not: (i) use Collected Data unless expressly permitted by Grindr hereunder, nor (ii) use Collected Data in ways that Advertiser are not expressly contemplated hereunder.
14.1 Necessary Rights. 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.
14.2 Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Grindr's prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
14.3 Entire Agreement. Each IO (which shall, by reference, incorporate these Standard Terms) will constitute the entire agreement of the Parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO.
14.4 Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs (including these Standard Terms) will be governed by the laws of the State of California. Grindr and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in Los Angeles County, California, and the Parties consent to the jurisdiction of such courts. No modification of these Standard Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
14.5 Notice. Any notice required to be delivered hereunder will be deemed delivered three days after deposit, postage paid, in U.S. mail, return receipt requested, one business day if sent by overnight courier service, and immediately if sent electronically by email (return receipt requested). All notices to Grindr and Agency will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
14.6 Survival. Sections which by their nature should survive, shall survive termination or expiration of these Standard Terms, including, without limitation, Sections 7, 10, 11, 12, 13, and 14.
14.7 Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
14.8 No Construction Against Drafter. The Parties agree and acknowledge that these Terms and all terms and conditions contained herein have been fully reviewed and negotiated by the Parties. The Parties agree that any principle of construction or rule of law that provides that, in the event of any inconsistency or ambiguity, an agreement shall be construed against the drafter of the agreement shall have no application to the terms and conditions of this Agreement.
14.9 Attorneys' Fees. In the event that any suit or action is instituted under or in relation to these Standard Terms or an IO (including the collection of fees or other amounts due and payable to Grindr or to enforce any provision thereunder), the prevailing Party in such dispute shall be entitled to recover from the losing Party all fees, costs, and expenses of enforcing any right of such prevailing Party, including, without limitation, such fees and expenses of attorneys.
14.10 Counterparts. These Standard Terms and IOs may be executed in counterparts via electronic transmission (e.g. PDF or email formats), each of which will be an original, and all of which together will constitute one and the same document.
"Ad" means any advertisement provided by Agency on behalf of an Advertiser.
"Advertiser" means the advertiser for which Agency is the agent under an applicable IO.
"Advertising Materials" means artwork, copy, and/or hyperlinks for Ads.
"Affiliate" means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
"Aggregated" means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
"Authorized Representative" has the meaning set forth in Section 2.3.
"Collected Data" consists of IO Details, Performance Data, and Site Data.
"IO" means a mutually agreed insertion order that incorporates these Standard Terms, under which Grindr will deliver Ads on Sites for the benefit of Agency or Advertiser.
"IO Details" are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
"Grindr Properties" are websites specified on an IO that are owned, operated, or controlled by Grindr.
"Performance Data" is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
"Policies" means advertising criteria or specifications made available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Grindr's public image, other editorial or advertising policies, and Advertising Materials due dates.
"Purchased Inventory" means the inventory delivered by Grindr (e.g., impressions, clicks, or other desired actions).
"Representative" means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
"Repurposing" means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
"Site" or "Sites" means Grindr Properties and Network Properties.
"Site Data" is any data that is (A) preexisting Grindr data used by Grindr pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Grindr, Grindr's Site, brand, content, context, or users as such; or (C) entered by users on any Grindr Site other than User Volunteered Data.
"Third Party" means an entity or person that is not a party to an IO; for purposes of clarity, Grindr, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
"Third Party Ad Server" means a Third Party that will serve and/or track Ads.
"User Volunteered Data" is personally identifiable information collected from individual users by Grindr during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.