Terms and Conditions
Last update: May 26th, 2019.
This Terms and Conditions apply to the Services provided by yieldPass LLC, a company dully incorporated under the laws of Delaware (hereinafter, "YIELDPASS”) to your COMPANY (hereinafter, the "COMPANY”). YIELDPASS and the COMPANY may also be referred to individually as a “Party”, or collectively as the “Parties”.
The COMPANY owns and/or controls advertising inventory within a website or network of websites (hereinafter the “Inventory Under Management”). The COMPANY wishes to use the exchange platform operated by YIELDPASS to trade their Ad inventory among several supply side platforms (hereinafter “YieldPass Exchange”) pursuant to the Articles of the Agreement and its Appendices, which are together referred to as the “Agreement”.
1. Managed Services:
(a) Scope: Subject to the terms and conditions of this Agreement, YIELDPASS will provide the digital advertisement managed services (the “Managed Services”) to enable the COMPANY to allocate and trade the Inventory Under Management on different supply side platforms authorized by YieldPass (hereinafter the “Supply Partners”) via YieldPass Exchange.
(b) Operation of the Services: YIELDPASS will discretionally allocate and trade the Inventory Under Management on behalf of the COMPANY on different Supply Partners via YieldPass Exchange and will provide the COMPANY with timely delivery reports throughout the term of this Agreement. Upon the Company ́s request, YieldPass will also provide access to the company to the specific reporting tools operated by each Supply Partner.
(c) Certain Definitions:
“Ad Request”: When an open slot of ad space is available on the Publisher ́s Site, a user ́s browser sends requests to ad exchanges or ad servers to send an ad. This request is known as an ad call. Ad calls include information from browser cookies and tag information such as publisher ID, size, location, referring URL, and other specifications and data needed for the ad to serve.
“Ad Server”: The software responsible for actually serving creatives to websites, or for making decisions about what ads will serve. An ad server may also track clicks on ads and other data. Major publishers, networks, and advertisers sometimes have one or more of their own ad servers. For example, Google DFP or MoPub.
“Ad Tag”: The piece of HTML inserted in a webpage that will contact an ad server and ask for an ad. “Ad unit”: The basic unit of ad inventory in the Publisher ́s ad Server. It is the vessel that carries the
banner or any other ad on a specific location in a Publisher ́s website.
“CPM Rate”. The price advertisers pay for every 1000 impressions of their advertisement served in a supply partner.
“Publisher”: An owner and operator of websites or an ad network that has the right to run ads on websites they do not own or operate.
“Ad Revenue”. Refers to all revenue generated by YieldPass Exchange for Served ads related to the Inventory Under Management.
“Ads Served” or “Served Ads”: An instance in which an advertisement is served by YieldPass Exchange in response to an Ad request made by a user’s browser or COMPANY applications for advertising material.
“Inventory under management”: Refers to the number of ad impressions made available by the COMPANY for trade by YIELDPASS via YieldPass Exchange.
“SSP” or “Supply Partner”: Platform that enables publishers to access demand from a variety of networks, exchanges, and platforms via one interface. For the purpose of this Agreement it should refer to supply partners authorized by YieldPass Exchange.
YieldPass will provide weekly or monthly reports to the COMPANY including the relevant metrics provided by each Supply Partner. These metrics include but are not limited to: total delivered impressions, CPM, Advertising Revenue. Further metrics will be available to the COMPANY upon request, provided that such metrics are available on the Supply Partner reporting tools.
(a) COMPANY acknowledges that YIELDPASS shall have the right to regularly provide, on a confidential basis, original log data to SSPs with the sole purpose of conducting the managed services of this Agreement.
(b) YIELDPASS may prepare and disclose overall information about the inventory traded via YieldPass Exchange for its own business purposes. Such information may include, without limitation, aggregate statistics, online advertising trends, and audience demographics. YIELDPASS shall have the right to include COMPANY’s data in its preparation of the overall information, so long as the disclosed information is prepared in a manner that avoids the identification of COMPANY or its data.
(c) COMPANY shall ensure that the information communicated by its website(s) ad tag management technology shall not contain information that YIELDPASS could use or recognize as personally identifiable about any user or other individual.
(e) Clients are responsible for ensuring that consumers are notified about the data collection and use practices taking place on the sites or apps from where they make inventory or data available through our Supply Partners, including by taking steps to ensure that such practices are disclosed to end users in sellers' and sellers' clients' or partners' websites, and in the applicable websites and mobile apps where data is collected or used for advertising. Exactly how and where such disclosures are provided will depend on the particular context.
Notice to consumers should include:
A statement that data may be collected for advertising purposes;
A description of the types of parties that may be collecting or using data, including intermediary ad technology companies, and advertisers;
In the European Economic Area and Switzerland (“EEA”), a list of each recipient of personal data;
A description of the types of data, including any PII (but see PII below), personal data, as defined under applicable law, precise location data, or other data, that are collected for advertising purposes;
An explanation of how, and for what purposes, the data collected may be used, including for delivering ads across sites or apps, and across devices, over time; and
A conspicuous link to or description of how to access a relevant choice mechanism, including, as applicable (also see "Choice and Consent"):
The NAI opt out page:
The DAA opt out page:
YieldPass recommends that clients that allow collection or use of data for behavioral advertising use the Ad Choices icon.
(f) Choice and Consent. Clients must obtain appropriate consent for data collection and use, including cookie usage, as applicable, that results from their participation on our Supply partners platforms, or otherwise form their use of YieldPass Exchange services.
For users located in the EEA, to the extent a Client is not using the IAB Europe Transparency and consent Framework, ad impressions must be sent to our Supply Partners in compliance with applicable law. For children located in the EEA, Clients must obtain consent from the holder of parental responsibility over any child under the age required for parental consent, as determined by the laws of the Member State in which the child resides.
(g) Personally Identifiable Information (PII). Clients may not bring onto our supply partners or associate with any YieldPass resource, e.g. ID, pixel, or domain, any data that, by itself, directly identifies an individual, such as name, address, phone number, email address, or government identifier.
(h) Sensitive Information. YieldPass does not allow sensitive information about end users to be used on our Supply partners. Sensitive information is information deemed as sensitive under applicable law or industry self-regulatory code, including, but not limited to information about users' health or finances, and information about children. For clarity, sensitive information includes “special categories of personal data” as defined under applicable laws.
(i) Child directed inventory. Clients must use reasonable measures to identify child-directed inventory, and not misclassify child-directed inventory, and must not identify users as children under (i) for children located in the US, age 13, (ii) for children located in the EEA, the age required for parental consent, as determined by the laws of the Member State in which the child resides, and (iii) for children located outside of the US and the EEA, the age defined by the laws or regulations of the given jurisdiction.
(j) Third party supply partners. In addition to YieldPass´s privacy policies herein, if you wish to enable the third-party supply partners set forth below to sell your advertising inventory through our technology, you are responsible for understanding and adhering to their policies.
4. COMPANY Responsibilities:
(a) Ad serving set up. The COMPANY will conduct its best efforts to generate and implements the ad tags, implement prebid adapters and to implement any necessary code or conduct any necessary adjustment on its Ad server to enable the Inventory Under Management to be traded on the Supply Partners and effectively delivered on the COMPANY ́s sites.
(b) Password Security: COMPANY acknowledges that access to the YieldPass Exchange ́s User Interface is through a unique user name and password (“Login Credential(s)”) that is individual to each of COMPANY’s staff designated to have access. COMPANY shall employ best practices to safeguard its Login Credentials from loss, theft or misuse. In no event may a Login Credential be used by anyone other than the person to whom it is assigned.
(c) Use of Services: COMPANY shall be solely responsible for any and all acts or omissions of COMPANY, its agents and its customers related to YIELDPASS Management Service and the User Interface.
(d) The COMPANY makes no guarantees or warranties with respect to the availability of any particular Advertising Inventory through YieldPass Exchange; provided however that the Company shall use commercially reasonable efforts to deliver Advertising Inventory throughout the duration of this Agreement.
(a) Subject to the terms and conditions of this Agreement, YieldPass Exchange will pay the COMPANY the percentage of the gross advertising revenue collected by YieldPass Exchange described on the specific Insertion Order, for the sale of the Inventory under Management among the different Supply Partners (the “Revenue Share”).
(b) For the avoidance of doubt, notwithstanding anything contained herein, the parties hereto hereby acknowledge and agree that YieldPass Exchange shall have no liability to the COMPANY for payment in respect of any amounts payable in respect of purchases of the Inventory under
Management unless YieldPass Exchange has fully collected any and all amounts due and owning by the Supply Partners to YieldPass Exchange in respect of such Purchases of Inventory under Management.
(c) The COMPANY and YieldPass Exchange hereby acknowledge and agree that YieldPass Exchange shall have no liability to the COMPANY for payment in respect of any amounts payable in respect of purchases of Inventory under Management where such Inventory is determined by an accredited vendor to be fraudulent, invalid or non-human.
(d) In addition to the payments described in article 5 (a) of this Agreement, YieldPass will charge the Company with a Platform Fee in the event that the duration of this Agreement is one (1) month. For 6 and 12 month commitments, the Platform Fee will not be charged to the Company.
6. Payment Terms.
The COMPANY will issue invoices to YieldPass Exchange each moth based on YieldPass Exchange ́s reported delivery data and YieldPass Exchange agrees to pay Publishers invoices within ninety (90) days of receipt.
7. Impressions and Payment calculations.
Except as stated otherwise herein, all payments under this Agreement will be based upon YieldPass Exchange ́s measurements (YieldPass Exchange will provide timely reports to the COMPANY or grant the company access to the Reporting tools of each Supply Partner as described on Article 2 of this Agreement). The COMPANY and YieldPass Exchange will conform to the IAB methodology for measuring advertising impressions. Unless otherwise noted, all payments shall be made in US Dollars.
8. YIELDPASS Obligations:
(a) YieldPass will trade the COMPANY ́s Ad Inventory among YieldPass Exchange certified Supply partners. The Parties acknowledge that YieldPass will use commercially reasonable efforts to maintain or increase the number of Supply Partners as its sole discretion.
(b) YieldPass will get the necessary approvals from the supply partners to sell the COMPANY ́s ad inventory to the available demand partners buying from the supply partners, provided that the Inventory Under Management fulfils the quality standards required by each supply partner.
(c) YieldPass will provide the COMPANY timely as described on Article 2 of this Agreement.
(d) YieldPass will support the COMPANY with the day to day advertising operations by acting as intermediary between the supply partners and the company while solving simple operational matters that don ́t require technical implementations on the COMPANY ́s sites.
(e) YieldPassl will transfer the earnings obtained by the COMPANY from the different supply partners under the terms described in this Agreement.
Each Party agrees that all business, technical and financial information it obtains from the other Party is the confidential property of the disclosing Party (“Proprietary Information” of the disclosing Party). Except as expressly allowed herein or as required by law, regulation or court order, the receiving Party will hold in confidence, and not use or disclose, any Proprietary Information of the disclosing Party during the Term of the Agreement or for one (1) year thereafter. Each Party will be deemed to have met its obligations hereunder if it treats the other Party’s Proprietary Information with the same degree of confidentiality it affords its own sensitive business information, provided that it shall be treated at least with reasonable care. Upon termination or expiration of this Agreement, or at the request of the disclosing Party, the receiving Party shall (at its option) return the Proprietary Information to the disclosing Party, or destroy it, and, upon the disclosing Party’s request, certify to the disclosing Party that it has taken such action. The receiving Party shall not be obligated by the terms of this Section 14 with respect to information that the receiving Party can document: (i) is or has become readily publicly available, without restriction through no fault of the receiving Party or its employees or agents; (ii) is received without restriction from a third party lawfully in possession of such information; (iii) was rightfully in the possession of the receiving Party, without restriction, prior to its disclosure by the other Party; or (iv) was independently developed by employees or consultants of the receiving Party, without access to the disclosing Party’s Proprietary Information.
10. Limited Liability:
NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHER SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, OR LOSS OF CLIENTS, WHETHER UNDER TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF ANY SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDING THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER THIS ARTICLE 8 OR DAMAGES THAT RESULT FROM A BREACH OF ARTICLE 7, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF THIS AGREEMENT FROM ANY CAUSE OF ACTION WHATSOEVER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED UNDER THIS AGREEMENT BY YIELDPASS EXCHANGE TO PUBLISHER DURING THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
EXCEPT AS EXPLICITLY PROVIDED HEREIN, YIELDPASS EXCHANGE MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND REGARDING THE SERVICES AND TECHNOLOGY PROVIDED BY THE SUPPLY PARTNERS EXCEPT AS
EXPLICITLY PROVIDED HEREIN, YIELDPASS EXCHANGE HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNINTERRUPTED OR ERROR FREE OPERATION, QUALITY, ACCESSIBILITY, NON- INFRINGEMENT OR THOSE ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE. FOR GREATER CERTAINTY, YIELDPASS EXCHANGE DOES NOT REPRESENT OR WARRANT THAT THE SUPPLY PARTNERS PLATFORMS WILL OPERATE SECURELY OR WITHOUT INTERRUPTION; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM ANY PARTY’S USE OF THE SUPPLY PARTNERS SOLUTIONS
12. Terms and Termination:
12.1. Term. The term of this Agreement shall begin on the date stipulated by the parties on the specific insertion order and continue for the period stipulated on the the same Insertion Order. The term o this Agreement shall be automatically renewed for successive periods equal to the period stipulated on the specific insertion order (each a “Renewal Term”, and together with the Initial Term, collectively hereinafter referred to as the “Term”), unless and until terminated in accordance with this Agreement.
12.2. Termination for Convenience. Either party may terminate this Agreement for any reason by providing the other party with thirty (30) days prior written notice provided that the Term of this agreement is superior to 1 month.
12.3. Termination Rights. In addition to any other rights of termination provided for herein, this Agreement may be immediately terminated by a party if:
(a) the other party commits a material breach of its obligations hereunder that is not cured within ten (10) days after written notice thereof from the non-breaching party, or
(b) a petition in bankruptcy or other insolvency proceeding is filed by or against the other party, or if an application is made for the appointment of a receiver for the other party of its property, or if the other party makes an assignment for the benefit of creditors, is unable to pay its debts regularly as they become due, or ceases carrying on business in the ordinary course.
12.4 Effects of Termination and Survival. Upon termination or expiration of this Agreement, all rights granted herein will revert to the granting party and all licenses will terminate, and Publisher will make no further use of YieldPass Exchange Services. Except as otherwise provided herein, any termination or expiration of this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to under this Agreement or at law or in equity and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination or expiration. Upon termination or expiration of this Agreement, any ads sold prior to such termination or expiration will continue to be served for their remaining duration (subject to the terms of this Agreement).
12.5 Return/Destruction of Confidential Information. Within thirty (30) days of any termination or expiration of this Agreement, each party will return to the other party or destroy all Confidential Information of the other party.
13. Governing Law. This Agreement shall be governed by and construed in accordance with the applicable laws of the State of Florida. For the purpose of all legal proceedings, this Agreement will be deemed to have been performed in Florida and the courts of the city of Miami, Florida will have jurisdiction to entertain any dispute arising under this Agreement. The parties to this Agreement each hereby attorn to the jurisdiction of the courts of the city of Miami, Florida in accordance with the foregoing and waive any objection to venue or any claim of inconvenient forum.