Insertion Order Terms of Use

Insertion Order Terms of Use

Introduction

These Insertion Order Terms (the “Terms”) govern advertising services detailed on Insertion Orders (each an “IO”) provided and managed by the Topple entity listed on the applicable IO (“Managed Services”). Each of Topple Ad Network Inc. and its publishers (“Topple”) on the one hand, and you on the other, are individually referred to as a “party” and collectively as the “parties.”

These Terms incorporate by reference and are subject to the Topple Terms of Use and Advertiser Terms of Use any creative and technical specifications and due dates set forth by Topple, and all other Topple policies or guidelines governing the use of Topple’s products or services (collectively, “Policies”), as well as the applicable Topple Terms of Service.

For clarity, these Terms do not govern the use of Topple’s self-service advertising portal.

1. Advertising on Topple
 

a. “Ad” means any ad listed on an IO.

b. By executing an IO, you agree to: (i) these Terms; (ii) the terms applicable to the Managed Services on the IO (“Program Terms”); and (iii) the IO, including any additional terms listed on the IO, as applicable (collectively, the “Agreement”).

 
2. Agencies
 

If Advertiser is located in the United States, and an agent, or any other person, organization, or entity (“Agency”), enters into the IO on behalf of an Advertiser, then: (a) “Advertiser” is the entity on whose behalf the Agency is purchasing the advertising products; (b) Agency represents and warrants that it is the authorized agent of the Advertiser, it has legal authority to enter into the Agreement on behalf of the Advertiser, and it can make all decisions for Advertiser related to the Agreement; and (c) the definition of “you” and “your” includes both Advertiser and Agency. Agency agrees that Topple may send invoices and campaign reporting directly to the Advertiser.

If Advertiser is located outside of the United States, and an Agency enters into the IO, then (w) “Advertiser” is the advertising client or other entity for which Agency accesses the Managed Services; (x) Agency agrees on behalf of itself and the Advertiser to be bound by the Agreement; (y) if Agency is acting as legal agent on behalf of an Advertiser, then Agency represents and warrants that (i) Agency is the authorized legal agent on behalf of Advertiser and is authorized to, and will bind Advertiser to this Agreement; (ii) Agency has legal authority to enter into the Agreement as agent on behalf of the Advertiser, and it can make all decisions for Advertiser related to the Agreement (and agrees to provide evidence of the same to Topple upon request); (iii) all of Agency’s actions in connection with this Agreement are and will be within the scope of the agency relationship between Agency and Advertiser; and (iv) the definition of “you” and “your” includes both Advertiser and Agency (z) if Agency is acting as principal at law with respect to Advertiser in relation to the Managed Services, then “you” and “your” mean Agency, Agency will procure that Advertiser complies with any obligations ascribed to Advertiser under this Agreement, and Agency will remain primarily liable for any obligations ascribed to Advertiser under this Agreement.

Agency agrees that Topple may, if required by Applicable Law, send invoices or campaign reporting directly to the Advertiser. Agency must notify Topple if it (or its activities in connection with this Agreement) is subject to any local transparency laws, regulations or rules which place obligations on Topple and will, if required by Applicable Law or requested by Topple, provide Topple any information relating to each Advertiser, and update that information as necessary. For purposes of this Agreement, “Applicable Law” means all applicable federal, state, and local laws, statutes, ordinances, rules, public order rules, and regulations of any jurisdiction.

3. Payments and Credit Check
 

Payments for orders via the Managed Services are governed by the Payment Program Terms below. You authorize Topple to obtain credit reports on you from one or more credit bureaus. Topple may extend, revise, or revoke credit to you at any time in its sole discretion.

4. Restrictions
 

You will not (a) interfere or attempt to interfere with the proper working of any website, mobile application, or other media platform owned, operated, or controlled by Topple or its publishers (“Platform”), or any other Topple system; (b) gather, access, or otherwise process any information relating to an identified or identifiable natural person via the Platform or any other Topple system for any purpose without the prior written consent of Topple; (c) transmit into any Topple system any “back door,” “time bomb,” “Trojan Horse,” “worm,” “drop dead device,” “virus,” “spyware,” or “malware,” or any computer code or software routine, which permits unauthorized access to, disables, damages, erases, disrupts, or impairs the normal operation of, or use of any Topple system, or any component thereof; (d) except with respect to automated means made available by Topple or as authorized by Topple in writing, use any automated means to access or manage your use of the Managed Services, including accessing, monitoring, scraping, or copying any Topple system, or any portions thereof, whether through the use of robots, scripts, spiders, or otherwise; (e) use or publicly display anything created via the Managed Services other than on the Platform unless expressly permitted in writing by Topple; or (f) resell Managed Services unless expressly permitted in writing by Topple. For purposes of these Terms, “Personal Data,” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

5. Representations and Warranties
 

You represent and warrant that (a) neither you, nor any of your affiliated companies, are included on any of the restricted party lists maintained by the United States, European Union, United Kingdom, or any government authority in the countries where you operate – for example, the United States Specially Designated Nationals List, Foreign Sanctions Evaders List, Denied Parties List, Unverified List, and Entity List, and the United Kingdom and European Union consolidated lists of persons and entities subject to financial sanctions targets; (b) you are not owned or controlled by such a restricted party; (c) you are not resident in, located in, or organized under the laws of any country with which trade is prohibited by the sanctions described above; (d) in the performance of this Agreement, you will not do business with or provide goods or services, directly or indirectly, to anyone on the restricted party lists or to any country with which trade is prohibited by any applicable sanctions; (e) you have the full power and rights to perform your obligations under this Agreement; (f) you will comply with Applicable Law and these Terms in your performance under this Agreement; (g) you are an entity validly existing and in good standing under the laws of the jurisdiction of incorporation or organization; and (h) all information provided by you to Topple is complete and accurate in all material respects.

If you provide Topple any Personal Data, you (a) represent and warrant that (i) the providing party has all necessary rights and consents to disclose the Personal Data of each Data Subject; and (ii) you or another providing party has properly informed each Data Subject of the disclosure of their Personal Data; and (b) agree to Topple’s use of such Personal Data to fulfill Topple’s obligations under the Agreement.

Agency further represents and warrants that (a) it is authorized to bind each Advertiser to these Terms and any IO; and (b) all of its actions in connection with these Terms are and will be within the scope of the agency relationship between Agency and each Advertiser.

6. Indemnification
 

You agree, to the extent permitted by Applicable Law, to indemnify, defend, and hold harmless Topple, its affiliates, directors, officers, stockholders, employees, licensors, and agents from and against any and all complaints, charges, claims, damages, losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) due to, arising out of, or relating in any way to (a) your actual or alleged breach of this Agreement; (b) your use of products or services provided by a third party in connection with the Managed Services, even if recommended, made available, or approved by Topple; (c) any fraud or misrepresentation by you in connection with this Agreement; and (d) your gross negligence or willful misconduct in connection with this Agreement.

Topple will promptly notify you in writing of any indemnification claim, but any failure to notify you will not relieve you from any indemnity liability or obligation you may have, except to the extent you are materially prejudiced by that failure. Topple will reasonably cooperate with you, at your expense, in connection with the defense, compromise, or settlement of any indemnification claim. You will not compromise or settle any claim in any manner, nor make any admission of liability, without Topple’s prior written consent, which Topple may provide in its sole discretion. Topple may participate (at its cost) in the defense, compromise, and settlement of the claim with counsel of its own choosing.

7. Publicity
 

Except as permitted by Topple in the Policies, you will not make any public statements (a) regarding the substance of this Agreement; or (b) using Topple’s or its publishers’ name, logos, trademarks, or other intellectual property, or any campaign-related information provided to you by Topple. In the event such use is permitted in the Policies, such use will inure solely to Topple’s benefit and will be revocable at any time in Topple’s sole discretion.

8. Survival
 

The Introduction and Sections 2-20 will survive cancellation of any IO or expiration of the Agreement. In addition, those provisions that by their nature are intended to survive cancellation of any IO or expiration of the Agreement will so survive.

9. Governing Law and Disputes
 

If you are located in the United States, then the laws of Colorado, except for its conflict-of-laws principles, govern this Agreement and any proceedings arising out of or relating to this Agreement, or its subject matter, including any tort claims. Any such proceedings will be litigated exclusively in the United States District Court for the Central District of Colroado. If, however, that court would lack original jurisdiction over the litigation, then the dispute will be litigated exclusively in the Superior Court of Colorado, County of San Miguel. The parties consent to personal jurisdiction in both courts. TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY.

If you are located outside of the United States, then this Agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English courts to handle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

10. Limitation of Liability
 

YOU AGREE THAT THE DISCLAIMERS AND LIMITATION OF LIABILITY IN THE TOPPLE TERMS OF USE APPLY TO YOUR USE OF THE MANAGED SERVICES, EXCEPT THAT IN NO EVENT WILL TOPPLE AND ITS PUBLISHERS’ AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE MANAGED SERVICES (HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION, MISREPRESENTATION, OR OTHERWISE) EXCEED THE GREATER OF $500 USD AND THE AMOUNT YOU PAID TOPPLE FOR ANY PAID MANAGED SERVICES UNDER THESE TERMS IN THE 12 MONTHS PRECEDING THE DATE OF THE ACTIVITY GIVING RISE TO THE CLAIM.

Your use of products or services provided by a third party in connection with the Managed Services is at your own risk and is subject to the third-party’s terms. To the fullest extent permitted by law, Topple is not liable for any damages or losses incurred by you as a result of your use of those products or services.

Unless you’re contracting with Topple Ad Network Inc., nothing in these Terms will exclude or in any way limit a party’s liability for fraud, death, or personal injury caused by its negligence, or any other liability to the extent such liability may not be excluded or limited as a matter of law.

11. Notices
 

All notices must be in writing. Notice will be deemed given (a) upon receipt if delivered in person; (b) upon delivery if by an internationally recognized mail service (e.g., Federal Express), overnight courier, or certified or registered mail, postage prepaid, return receipt requested; or (c) on the date transmitted by email. All notices to Topple must be sent via email to [email protected] All notices to you will be sent to the email address or street address that you have listed on the IO. You agree that all agreements, notices, disclosures, and other communications that Topple provides to you electronically satisfy any legal requirement that those communications be in writing.

12. No Agency
 

These Terms do not establish any agency, partnership, or joint venture between you and Topple.

13. Attorneys’ Fees
 

In any action arising out of or relating to this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs.

14. Construction
 

References to a Section include all of its subsections. The Section headings are for convenience only and will not affect how this Agreement is construed. Unless the Agreement refers specifically to “business days,” all references to “days” mean calendar days. In the Agreement, “you” and “your” mean the entity executing the IO (for Agencies, please also see Section 2 above). The words “include,” “includes,” and “including” mean “including without limitation.”

15. Modifications
 

Topple may update these Terms, any additional terms described in these Terms, the Policies, the Topple Ad Network Inc. Terms of Use, and the Topple Privacy Policy at any time. You agree that Topple may notify you of any such updates via email, via posting the updates on the Terms link or on any other Topple Platform, or via another method reasonably selected by Topple. Thereafter, your use of the Managed Services (or engaging in such other conduct as Topple may reasonably specify) constitutes acceptance of and agreement to those updates. Any other amendments, modifications, supplements, waivers, or other changes to the Agreement must be in writing and signed by duly authorized representatives of each party.

16. Force Majeure
 

Excluding payment obligations, neither you nor Topple will be liable for delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by conditions beyond the party’s reasonable control (“Force Majeure Event”). If a Force Majeure Event has continued for five business days, Topple and you will have the right to cancel the remainder of the IO without penalty.

17. Conflicts
 

If there is a conflict between these Terms, any Program Terms, and any IO, the conflict will be resolved according to the following order of precedence (a) Program Terms, (b) Insertion Order Terms of Use, and (c) the IO. Notwithstanding the foregoing, the IO may amend the Terms or the applicable Program Terms if the amended terms contained in such IO (i) specifically identify the provision(s) of the Program Terms or the Terms they amend and (ii) the IO is fully executed. Any amendments made in an IO will apply only to that IO.

18. Assignment
 

You may not assign, delegate, or otherwise transfer this Agreement or any of your rights or obligations under this Agreement without the express prior written consent of Topple. This Agreement will bind each party and its successors and assigns. Topple may assign this Agreement, including all rights and obligations under it, to any of its affiliates.

19. Miscellaneous 
 

a. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will continue in full force without being impaired or invalidated. If a party does not enforce a provision in this Agreement, it will not be considered a waiver. No waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right.

b. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous representations, understandings, agreements, or communications between the parties regarding the subject matter contained herein. No terms or conditions other than those set forth in this Agreement will be binding on Topple unless expressly agreed to in writing by Topple. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.

c. Topple will not be required to act, or abstain from action, if such action or abstention would violate the laws of the United States or any applicable foreign jurisdiction, including the anti-boycott laws administered by the United States Departments of Commerce and Treasury.

d. You may not disclose any nonpublic information shared by Topple, including all information regarding alpha or beta products or programs.

e. You and Topple confirm that it is each party’s wish that this Agreement, as well as related documents, including all notices, be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise.

f. You acknowledge that Topple may present this Agreement in a language other than English for your convenience, but that you are only agreeing to the English version of this Agreement. If there is a conflict or inconsistency between this Agreement in English and in any other language, the English version governs.

Payment Program Terms

The Payment Program Terms apply to all payments due by you for Managed Services.

1. Charges
 

All Ads that run via the Managed Services will be billed solely on Topple’s measurements unless stated otherwise.

If the Managed Services are subject to taxes, fees, or charges, Topple may charge you for those taxes, fees, and charges in addition to the cost of the Managed Services (collectively, “Charges”), and you agree to pay Charges at the rates in effect when incurred. If your order is subject to taxes (including value-added or goods and services taxes) and you are required by Applicable Law to remit and report those taxes, you agree to remit and report such taxes to the appropriate taxing authority. If you are required to withhold or deduct any taxes, you will (a) pay to Topple any additional amount necessary so that Topple receives a net amount equal to the Charges set forth in the applicable invoice; and (b) send to Topple on a timely basis and as otherwise reasonably requested by Topple all official tax receipts or other documentation required by Applicable Law proving you complied with the requirement to withhold or deduct those taxes.

If Topple requests, you will provide a valid VAT ID or other tax identification number for you and for Advertiser (where required).

2. Payment
 

a. Topple may require payment in advance of the start date of any campaign and may terminate or suspend any current or future campaigns.

b. Invoice. Topple will send an invoice for all Charges to the email address listed on the IO or applicable agreement for Managed Services. You agree to pay all Charges on or before the due date listed on the Invoice. You must raise any dispute of an invoice within 30 days from the date you receive the invoice.

c. Sequential Liability. If an Agency enters into the IO as authorized legal agent on behalf of an Advertiser, then (i) Agency will be responsible for payment solely to the extent Agency has received payment from Advertiser; and (ii) if Advertiser has not paid the full amount due, Topple may immediately seek payment directly from Advertiser, and Agency will assist Topple in collecting the unpaid amounts, including by signing a declaration to confirm that the amounts due have not been paid. For the avoidance of doubt, if you are not acting as authorized agent on behalf of Advertiser, sequential liability will not apply even if otherwise authorized by Topple.

Upon request from Topple, Agency must immediately provide Topple written confirmation of the relationship between Agency and an Advertiser in a form agreed to by Topple. At a minimum, such confirmation must verify (i) whether Advertiser has paid Agency the amount of the Charges in question; and (ii) that Agency is Advertiser’s agent and is authorized to act on Advertiser’s behalf in connection with the Managed Services and the Terms.

d. Credits. Topple may on occasion provide a credit, incentive, or other form of discount (“Discount”) in an amount and on terms and restrictions as provided by Topple. If you receive a Discount on an IO, and if required by Applicable Law, you will ensure the Discount is granted to Advertiser and will disclose the Discount to Advertiser.

e. Past Due Amounts. If your (i) payment method fails; or (ii) an invoice becomes past due, Topple may take steps to collect past due amounts using collection mechanisms it deems appropriate and may terminate any current or future purchase of Managed Services. You will pay all reasonable costs and expenses (including reasonable attorneys’ fees) Topple incurs in collecting any late payment of Charges. Unless otherwise agreed by the parties, Agency and Advertiser are jointly and severally liable for any such costs and expenses.

f. Country-Specific Terms. If your principal place of business is located in any of the
countries listed below, the terms listed for that country apply to you in addition to the terms above.

China: The Charges are exclusive of Local VAT and Local Surcharges. You will remit and report the Local VAT and Local Surcharges to the appropriate Chinese tax authority on Topple’s behalf. Upon Topple’s request, you will promptly provide Topple proof of payment issued by the appropriate Chinese tax authority, including proof of the amount of the taxable revenue, the amount of Local VAT, and the amount of Local Surcharges relating to the Charges. You will not withhold any Local VAT or Local Surcharges from the Charges set forth in the applicable invoice. If you are required to pay any Local VAT or Local Surcharges by withholding or deducting such amounts from the Charges, you will pay to Topple any additional amount necessary so that Topple receives a net amount equal to the Charges set forth in the applicable invoice. For purposes of these Payment Terms (a) “Local VAT” means value-added tax (including any penalties and late payment surcharges) levied under Applicable Law in China; and (b) “Local Surcharges” means any taxes, duties or surcharges payable on the amount of Local VAT payable, including City Maintenance and Construction Tax, Education Surcharge, Local Education Surcharge, and any penalties and late payment surcharges.

France: In case of late payment, a penalty of three times the French legal interest rate will apply as from the date on which the payment is due; late payment will also give right to a fixed compensation for recovery fees of an amount of EURO €40.

3. Survival
 

These Payment Program Terms survive cancellation of any IO or expiration of the Agreement.

Managed Advertising Program Terms

The Managed Advertising Program Terms apply to all Ads listed on an IO.

1. Definitions
 
“Advertiser Data” is Personal Data provided by you or your agents to Topple in connection with an Ad.“Advertising Materials” means artwork, copy, photos, images, visual assets, trademarks, logos, service marks, audio content, audiovisual materials, email addresses, video, URLs, musical compositions, master recordings, sound effects, or any other intellectual property or other content provided or approved by you or on your behalf.
 

“Geofence” means (i) the geographical area within which Users are able to access a given Creative Tool, subject to any restrictions over designated locations within the Geofence as determined by Topple, or (ii) the audience of Users to whom the Creative Tool is targeted, as stated on the applicable IO. Geofences for Shared Spaces products are groupings of similar locations as determined by Topple in its sole discretion.

“Promotion” means any sweepstakes, contest, offer, or other promotion offered by you.

“Research” means any study or survey relating to an Ad.

“Topple Data” means any data that is collected, received, or derived from an Ad or Topplecode, or is otherwise provided in connection with an Ad or Topplecode, including Research.

“Tags” means ad tracking tags applied to an Ad at the request of Advertiser.

“Tag Vendor” means a Topple-approved third-party vendor that supplies Tags that may be included in Ads.

“Users” means users of the Platform.

2. Ads
 

a. You will provide Ads to Topple in accordance with these Managed Advertising Program Terms.

b. You grant to Topple and its affiliates (or production partners) a non-exclusive, non-transferable (except as provided in this Agreement), sublicensable, irrevocable, worldwide, royalty-free, license to use, archive, copy, cache, encode, record, store, reproduce, distribute, transmit, broadcast, adapt, modify, publish, promote, exhibit, synchronize, communicate to the public, make available, publicly display, and publicly perform the Advertising Materials as set forth in this Agreement.

c. To the extent permitted by Applicable Law, Topple does not guarantee the performance of Ads, Tags, or the Platform, or that Ads will reach the audience targeted. Topple runs systems that attempt to detect fraudulent activity, but Topple is not responsible for such fraudulent activity or any technological issues that may affect the cost or performance of the Ads. Topple does not guarantee perfect delivery.

d. Topple may use Ads for advertising, marketing, and promotional purposes once the Ads have run.

e. Topple makes no commitments regarding editorial or content adjacency, or competitive separation, for Ads.

f. If you use an Ad as part of a Promotion, you are solely responsible for complying with Applicable Law wherever your Promotion is offered, as well as with Topple’s Promotions Rules. Unless Topple expressly agrees otherwise in writing, Topple will not be a sponsor or an administrator of your Promotion.

g. You acknowledge that Users may use the Advertising Materials for purposes or in ways other than you anticipated. You agree that such uses constitute user-generated content for which neither Topple nor its affiliates bear any responsibility. You agree that neither Topple nor its affiliates are liable for any claims or losses based on or arising from any user-generated content, including user-generated content that makes use of the Advertising Materials, whether on the Platform or beyond.

h. To the extent permissible under Applicable Law, you irrevocably waive any moral rights or equivalent rights you may have in the Advertising Materials throughout the world. To the extent a waiver is not permitted, you agree not to assert any such rights against Topple.

i. Topple may run multiple Ads over any one location. Topple reserves the right in its discretion to block certain areas without notice.

j. You acknowledge and agree that Users may be able to save, share, and view Ads during and beyond the Ad’s run time.

k. Topple may provide you the option to age-target an Ad. If an Ad requires age-targeting by Applicable Law or industry standards in the region where the Ad will run, you are responsible for informing Topple of such targeting requirements, and Topple will not be liable if you fail to do so.

l. Topple may in its sole discretion apply a label or disclosure to notify Users that the Ad is a purchased product. Topple may in its sole discretion include in that label or disclosure your name as you have provided it to Topple. You, not Topple, are responsible for including any legally required advertising disclosure in the Ad.

m. Topple may provide you the option to make an Ad accessible to Users within a geographical area specified by Advertiser. Advertiser is solely responsible for ensuring the accuracy of any information it provides to Topple for this purpose.

3. Campaigns
 

a. Each IO will include the Ads, the amounts to be paid for the Ads, the geographic area(s) or types of locations where the Ads will run, the start dates and end dates of each Ad, and any other information reasonably requested by Topple. If you execute an IO, which Topple has sent to you, Topple will deliver the Ads listed on that IO in accordance with that IO.

b. Topple will make commercially reasonable efforts to make reporting available for Ads.

4. Research
 

Topple, its affiliates, and a third-party vendor, as applicable, may conduct Research and in doing so may use your name and logo.

5. Cancellation
 

a. Cancellation. Unless otherwise specified on an IO, you or Topple may cancel an entire IO, or a specific Ad placement listed on an IO, without penalty, as follows:

  1. Dynamic CPM Placements. With 14 days’ prior written notice for any dynamic CPM Topple Ad placements. For clarification, if you cancel a dynamic CPM Topple Ad placement (A) 14 or more days in advance of the start date, then the Ad placement is cancelled in full; (B) within 14 days of the start date, then Topple will invoice you for the prorated portion of the Ad placement through 14 days from the cancellation date; (C) after the start date, then Topple will run the Ad placement for 14 days from the cancellation date and terminate thereafter, invoicing for all delivered impressions.

  2. Fixed Bid Type Placements. A fixed bid type is when a CPM, CPC, or CPCV is reserved at a fixed rate in the Insertion Order. Insertion Orders with fixed bid type placements may be cancelled with 30 days’ prior written notice. For clarification, if you cancel a fixed-bid-type Ad placement (A) 30 or more days in advance of the start date, then the Ad placement is cancelled in full; (B) within 30 days of the start date, then Topple will invoice you for the prorated portion of the Ad placement through 30 days from the cancellation date; (C) after the start date, then Topple will run the Ad placement for 30 days from the cancellation date and terminate thereafter, invoicing for all delivered impressions.

  3. Ad Packages. For any Ad placement sold as part of a Topple advertising package, the cancellation period for the Ad placement with the longest cancellation window will apply for all Ad placements in the package, irrespective of the type of Ad placement.
  4. Custom Material. You will remain liable to Topple for all amounts due for any custom material provided to you or completed by Topple or its third-party vendor prior to the effective date of cancellation. For IOs that contemplate the provision or creation of custom material, Topple will specify the amounts due for such custom material as a separate line item. Topple owns all custom material, and custom material may only be displayed across the Topple Ad Network, unless Topple approves in writing.

b. Effect of IO Cancellation. Upon cancellation or expiration of an IO, the licenses granted in these Terms will expire immediately. But, you acknowledge and agree that some content across the Topple Ad Network, and servers, may persist for a period of time, and the licenses granted by you in this Agreement extend for those purposes and for the limited purposes of advertising, marketing, and promoting the Platforms and Topple’s advertising products and services.

You agree that if Topple cancels an IO or an Ad under this Agreement, the sole and exclusive remedy available to you is either (i) Topple will credit the payment method used for that IO an amount equal to the cancelled IO or Ad; or (ii) Topple will not bill you for the cancelled IO or Ad.

c. Topple reserves the right to modify or discontinue any advertising product offerings, including measurement solutions, in whole or in part at any time.

5. Representations and Warranties
 

In addition to your representations and warranties under the Terms, you represent and warrant that (a) all Ads comply with the Policies; (b) you have all necessary licenses, rights, permissions, and clearances to use, and for Topple to use, the Advertising Materials in connection with each IO and in accordance with these Managed Advertising Program Terms; and (c) you have paid and will pay all amounts, if any, that have become or may become payable to any and all musicians, composers, publishers, public performance societies, and other rights-holders in connection with the use of any portion of the music, master recordings, compositions, or other audio or audio-visual materials in Advertising Materials.

6. Data Usage and Privacy
 

a. Data Usage. Except as expressly permitted in writing by Topple, and subject to any restrictions set forth in the Agreement, the only manner in which you or your agents may use Topple Data is on an aggregated and anonymous basis for the purpose of (i) optimizing your advertising campaigns on the Platform; (ii) assessing the effectiveness and performance of your advertising campaigns on the Platform; and (iii) planning your advertising campaigns on the Platform.

b. Data Restrictions. Except as otherwise permitted in the Agreement, neither you nor your agents will, and none of you will allow any other party to (i) create compilations or combinations of Topple Data; (ii) co-mingle Topple Data with other data or across advertising campaigns on platforms other than the Platform; (iii) sell, rent, transfer, or provide access to Topple Data to any affiliate, third party, ad network, ad exchange, advertising broker, or other advertising service; (iv) associate Topple Data with any identifiable person or User; (v) use Topple Data for retargeting a User or appending data to a non-public profile regarding a User; (vi) build, create, develop, augment, supplement, or assist with the building, creation, development, augmentation, or supplementation of any segments, profiles, or similar records on any User, device, or browser; or (vii) de-aggregate or de-anonymize, or attempt to de-aggregate or de-anonymize, Topple Data.

c. Advertiser Data. Topple will not share Advertiser Data with any third party except as expressly provided (i) in these Managed Advertising Program Terms; (ii) in the Terms; (iii) in another agreement between Topple and you or your affiliate; or (iv) with your written consent. Consistent with Topple’s Privacy Policy, Topple may share Advertiser Data with third parties for legal reasons or as part of a merger or acquisition, and with service providers, sellers, and partners.

d. Tags. Your Ad may include Tags from Tag Vendors. The Tags will be used to measure Ad campaign metrics. Unless expressly authorized in writing by Topple, neither you nor your agents will (i) modify, alter, or change the Tags; or (ii) manipulate or “piggyback” on the Tags. Topple may remove or pause Tags at any time in its sole discretion. You acknowledge that Topple and its affiliates will not be held liable for any unlawful or unauthorized use by you, a Tag Vendor, or any other third party, of any data obtained through any Tags.

e. Privacy Policy. You will post on your website or mobile platform a privacy policy and will adhere to your privacy policy, which will comply with Applicable Law.

8. Makegoods
 

For guaranteed placements, if Topple fails to deliver the full amount of guaranteed impressions listed on the IO during the campaign term, then Topple, in its sole discretion, may (i) invoice for actual impressions delivered, or (ii) with your written approval (email acceptable) extend the campaign. All campaigns are not guaranteed unless explicitly stated on the IO. Topple does not offer makegoods for fixed CPM or non-guaranteed campaigns.

9. Advertising Materials Delivery
 

You must provide Advertising Materials to Topple at least 10 business days before the scheduled run date of the Ads. If you fail to do so, then you acknowledge that Topple may be unable to deliver the Ads on the planned run date and you will remain responsible for full payment for the Ad. You must provide all Advertising Materials in accordance with Topple’s Policies.

10. Survival
 

The Introduction and Sections 1, 2(b), 2(d), 2(f), 2(g), 2(h), 2(j), 2 (k), 2(l), 4-7, and 9 of these Managed Advertising Program Terms will survive any termination or expiration of the Managed Advertising Program Terms.