NETFLIX ADDENDUM TO THE IAB CANADA STANDARD TERMS AND CONDITIONS AND LATE CREATIVE POLICY FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS, VERSION 2013
This addendum (the “Addendum”) supplements and is made a part of the Interactive Advertising Bureau Canada Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less and Late Creative Policy, Version 2013 (located at https://iabcanada.com/wp-content/uploads/2016/12/IAB-Canada-Terms-Conditions-2013.pdf, as such location may be updated from time to time) (the “IAB Media Terms”). The parties agree that the IAB Media Terms, this Addendum, and the Insertion Order (“IO”)(collectively, the “Agreement”) govern the placement of advertising on any digital media property sold to Advertiser, or Agency on behalf of Advertiser, by Media Company under an IO referencing this Agreement. Terms defined in the IAB Media Terms will have the same meaning in this Addendum unless otherwise stated herein. In the event of any IO directly entered into by Advertiser and Media Company, references to “Agency” will mean “Advertiser” and Section XI(c) will not apply. The term “Buyer” will refer to the Advertiser and/or Agency as applicable.
Definitions
A. In addition to websites, the terms “Media Company Properties” and “Network Properties” include mobile applications, connected TV devices, gaming consoles, digital games, and shows, and other platforms and properties where digital advertising may be delivered.
B. The term “Policies” will include any supplemental policies regarding the use of Media Company’s ad products or services, tags, pixels, cookies, and other technology designed to collect, access, use, disclose, or track users’ data, any advertising industry self-regulatory codes, guidelines, or standards, including the Digital Advertising Alliance Canada’s Self-Regulatory Principles (as applicable), Netflix’s ad policies and supplemental terms located at https://help.netflix.com/legal/ads-policy and ad creative source specifications located at https://partnerhelp.netflixstudios.com/hc/en-us/articles/8330622858003-Ad-Creative-Source-Specification, as may be updated by Netflix from time to time.
Section III (Ad Placement and Positioning)
A. The first two paragraphs of Section III(d) (Editorial Adjacencies) are deleted and replaced with the following: “d. Editorial Adjacencies. Media Company acknowledges that Advertisers may have Ad placement and content adjacency preferences (“Editorial Adjacency Preferences”). Buyer acknowledges that Media Company will make available tools that permit Buyer to implement Editorial Adjacency Preferences (“Advertising Controls”) and Buyer is responsible for implementing Editorial Adjacency Preferences via the Advertising Controls. If Buyer does not implement the Advertising Controls, Media Company will not be liable for non-compliance with Buyer’s Editorial Adjacency Preferences. Media Company will use commercially reasonable efforts to comply with Editorial Adjacency Preferences, while maintaining editorial control over Media Company Properties. Advertiser's sole and exclusive remedy for unmet Editorial Adjacency Preferences is to request in writing within thirty (30) days of the applicable publication that Media Company remove the Ads and provide makegoods, or, if no makegood can be agreed upon, issue a like-value credit to Advertiser. Buyer agrees that Advertiser will not be entitled to any remedy for any violation of the Editorial Adjacency Preferences resulting from (i) Ads placed at locations other than the Sites, or (ii) Ads displayed on properties that Buyer is aware, or should be aware, may contain content in potential violation of the Editorial Adjacency Preferences.”
Section IV (Payment and Payment Liability)
A. The first sentence of Section IV(a) is deleted and replaced with the following: “The initial invoice will be sent by Media Company upon completion of the first month’s delivery, unless prepayment applies as may be agreed in the IO.”
B. The following is added to the end of Section IV(b): “Media Company may offset any unpaid amounts due to Media Company against any amounts due from Media Company to Buyer under any agreement or IO, or offset such amounts against any charges for media to be delivered by Media Company.”
C. Section IV(c) is amended as follows: in subsection (ii), the clause “payment liability will be dealt with in one of the following ways:” is deleted and replaced with the following: “Agency will act as principal for the benefit of Advertiser and will ensure the performance of Advertiser’s obligations hereunder. Media Company agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Advertiser to Agency for Ads placed in accordance with the IO. All references to Agency acting as agent for a disclosed principal in this Agreement will not apply. Notwithstanding the foregoing, the parties may elect in an IO that agency authority and payment liability be dealt with in one of the following ways (or in another manner agreed to by the parties):”.
D. The following is added to the end of Section IV(c): “Agency will process and clear all late payments within five (5) business days of receipt of the payment from Advertiser.”
E. A new Section IV(d) is added as follows: “d. Payment Disputes. If Buyer reasonably disputes an invoice, Buyer will pay the undisputed amount and submit written notice of the disputed amount within sixty (60) days from the date of the invoice. Media Company and Buyer will cooperate in good faith to resolve the dispute.”
Section V (Reporting)
A. Section V(b) is deleted and replaced with the following: “Media Company will make reports available to Advertiser either upon campaign completion or during regularly scheduled intervals throughout the campaign. The details of the reports may be set forth in the IO. The calculation of all fees will be based on Media Company reported numbers.”
B. Section V(c) is amended as follows: in the second sentence, the phrase “Media Company will cure such failure by delivering an accurate or complete report within five (5) business days of receipt of such notice” is deleted and replaced with the following: “Media Company will use best efforts to cure such failure promptly upon receipt of such notice.” The third sentence is deleted. The fourth sentence is deleted and replaced with the following: “Failure to cure may result in delayed or nonpayment for all activity for which data are incomplete or missing until Media Company delivers reasonable evidence of such performance.”
Section VI (Cancellation and Termination)
A. Section VI(a)(ii) is deleted and replaced with the following: “Flat fee-based or fixed placement Deliverables, including, without limitation, roadblocks, time-based or share of voice buys, sponsorships and related media commitments, promotions, content production, and Custom Materials are non-cancellable by Buyer.”
B. The following is added to the end of Section VI(c): “Additionally, if Buyer breaches its obligations by violating any of the Policies, Media Company may terminate the Agreement or placements associated with such breach upon written notice. Failure to make timely payment to Media Company in accordance with Section IV of these Terms is a material breach of the Agreement.”
C. A new Section VI(g) is added and will read as follows: “Media Company may terminate the IO immediately upon notice if Buyer (i) terminates, winds up, liquidates, suspends, or ceases to carry on all or substantially all of its business, or (ii) becomes the subject of a petition in a bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, the restructuring of debts, or assignment to the benefit of creditors.”
Section VII (Makegoods)
A. The last sentence of Section VII(a) is deleted.
B. Section VII(b) is deleted and replaced with the following: “If actual Deliverables for a campaign fall below guaranteed levels in the IO, and/or an Ad is omitted, Media Company may issue a makegood at its discretion. If Buyer pre-paid Media Company for the under-delivered campaign, Media Company will issue a makegood equal to the value of the undelivered portion of the relevant campaign, provided Buyer is current on amounts owed to Media Company. Media Company will not provide a makegood or extend any Ad beyond the period set forth on the IO without the prior written consent of Buyer.”
Section X (Ad Materials)
A. Section X(a) is amended by deleting "sole” and after “Section VI(c)” adding in “Section VI(g).” Further, Media Company will undertake commercially reasonable efforts to satisfy the provisions in Appendix A: Late Creative Policy but will not be obligated to utilize replacement materials.
B. Section X(b) is amended by deleting the language beginning with “provided that if Media Company” through the end of the sentence.
C. Section X(c) is amended by replacing “one (1) business day” with “three (3) business days”.
D. Section X(e) is amended by adding “Except as necessary to comply with Media Company’s Policies,” to the beginning of the first sentence.
Section XI (Indemnification)
A. Section XI(b) is amended by adding the following at the end of (iii): “, or (iv) the sale or use of any products or services sold or links or landing pages accessible via an Ad or Advertising Materials on the Sites, or (v) the use of any content or technology requested by Advertiser to be used in placing the Ad. Advertiser’s indemnification obligations herein will extend to the acts, omissions, services, and deliverables of any third party acting on its behalf.”
Section XII (Limitation of Liability)
A. Section XII is deleted and replaced with the following: “Excluding the parties’ obligations under Section XI or damages that result from a breach of Section XIII: (A) in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits or lost savings, business interruption, loss of information and the like, incurred by the other party arising out of these Terms, even if such party has been advised of the possibility of such damages; and (B) a party’s aggregate liability for direct damages under this Agreement shall not exceed the total amounts paid or payable by Advertiser under this Agreement.”
Section XIII (Non-Disclosure, Data Usage and Ownership, Privacy and Laws)
A. The following Section XIII(c)(ix) is added: “‘End User Information’ means information of or relating to an end user of the Sites, including end user registration on the Sites.”
B. Section XIII(d) is deleted and replaced with the following: “Advertiser agrees that it will not, and will cause Agency or any Third Party not to: (A) collect or use any End User Information for the purpose of obtaining Personal Information, (B) use End User Information to personally reidentify, or attempt to reidentify, or create or augment profiles for, any end user of the Sites, including by combining with Personal Information, or (C) share, communicate or transfer End User Information with or to any Third Party for such Third Party’s own use or benefit, other than to perform the IO as Advertiser’s vendor. For the avoidance of doubt, End User Information is owned by Media Company.”
C. Section XIII(h) is deleted.
Section XIV (Third Party Ad Serving and Tracking)
A. The text of each Section XIV(a) through XIV(c) is deleted and replaced with the following: “Reserved.”
Section XV (Miscellaneous)
A. The first sentence of Section XV(d) is deleted and replaced with the following: “In the event of any inconsistency between the terms of an IO, the IAB Media Terms, and the Addendum, the Addendum will control unless the IO specifically notes that it supersedes any inconsistent terms in this Addendum.”
B. Section XV(d) is amended as follows: (i) the first placeholder is replaced with “Ontario, without giving effect to any choice or conflict of law provision, principle, or rule (whether of the Province of Ontario or any other jurisdiction)”; and (ii) the second placeholder is replaced with “Ontario.”