INSERTION ORDER TERMS & CONDITIONS

PUBLICATION DATE:

February 09, 2024

BACKGROUND  

Livewire and the Advertiser have agreed that Livewire shall provide the Services to the Advertiser, and the Advertiser shall acquire the Services and pay the Fees to Livewire in accordance with the terms of these Insertion Order Terms and Conditions (the “Agreement”).

GOVERNING TERMS

All Insertion Orders (“IO”) between Livewire Inc (“Livewire”) and its advertiser (“Advertisers”) are governed by the AAAA/IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS VERSION 3.0 (the “IAB Terms and Conditions”) as amended and expanded by this Agreement. Notwithstanding the foregoing, any specific references in an IO supersede the IAB Terms and Conditions and this Agreement.

INVOICES, TAXES, & PAYMENT PROVISIONS

Livewire shall issue tax invoices for the Fees as well as any Disbursements incurred by Livewire in providing the Services.

If Advertiser fail to pay any amount to Livewire by the Due Date, Livewire shall be entitled, in its sole and absolute discretion and without prejudice to any other rights which it may have in law, to cancel the IO or suspend performance of its obligations without notice.

The Advertiser agrees that some Disbursements may need to be paid in advance of some or all the Services being provided, in which case Livewire may request that the Advertiser pay such Disbursements when due so as to allow the Services to be performed in a timely manner.

Any disputes to any invoice must be raised by Advertiser during this 30-day period or the invoice will be deemed to be correct in all aspects and Advertiser shall lose any rights to protest the invoice.

Without prejudice to any other remedies available to Livewire, if the Advertiser does not make payment of aninvoice by the due date of the invoice, Livewire is entitled to do any or all the following:

charge interest at a rate of the lesser of (1) 5% per annum or (2) the highest rate permitted under applicable law from the date that the invoice was due for payment until the date that the invoice is paid in full;

require the Advertiser to pay in advance for any Services, or part of any Services, which have not yet been performed; and

not perform any further Services, or part of any Services until payment of any outstanding invoices have been paid in full.

Advertiser shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Advertiser under this Agreement or any IO. Any such taxes, duties, and charges currently assessed, or which may be assessed in the future, that are applicable to the Services are for the Advertiser's account, and Advertiser hereby agrees to pay such taxes, which shall be payable (where applicable) at the same time and in the same manner as the consideration for the supply for which such taxes relate.

If any deliverables or advertisement are subject to a third-party commission, then the Advertiser will pay such commissions whether or not the deliverables or advertisement are actually used.

SERVICES

Advertiser appoints Livewire to provide the Services in accordance with the particulars set out in the IO.

If the Advertiser requests Livewire to provide Additional Services or requests changes to an existing IO during the relevant IO Term, and Livewire accepts this request, the parties will document such changes or Additional Services in writing. Advertiser acknowledges that any changes to an existing IO may incur additional fees.

Livewire shall obtain the Advertiser’s consent before incurring any disbursement, including media costs.

If the Advertiser terminates an approved IO the Advertiser must pay to Livewire any Fees for Services already rendered as at the date of such termination, plus disbursements and any penalty or cancellation fees charged by any third party. Upon notice of valid termination of an IO, Livewire will use reasonable endeavors to avoid third-party cancellation fees for the Advertiser (such as any media booked as part of the Services).

If Livewire’s performance of its obligations under this Agreement is prevented or delayed by an act or omission of the Advertiser, or its agents or subcontractors then, without prejudice to any other right or remedy it may have, Livewire will be allowed an extension of time to perform its obligations equal to the delay caused by the Advertiser.

The Advertiser shall ensure that any advertisements or media placed by Livewire pursuant to this Agreement complies with all applicable laws and regulations in the relevant jurisdictions.

The Advertiser agrees to indemnify Livewire for damages or loss suffered by Livewire as a consequence of the Advertiser’s lack of compliance with any relevant advertising code or any law or regulation and acknowledges that Livewire may seek to rely upon the performance of this covenant as a defense to any related claim or action on the basis that:

the contravention in respect of which the proceeding was instituted was due to the act or default of another person, to an accident, or to some other cause beyond Livewire’s control; and

Livewire took reasonable precautions and exercised due diligence to avoid the contravention.

LIVEWIRE’S OBLIGATIONS

Livewire shall provide the Services:

in a professional and competent manner; and

with the care, skill and diligence that would reasonably be expected from a prudent and experienced supplier of services the same as or similar to the Services.

Livewire must use reasonable endeavors to meet any performance or milestone dates that may be specified in a IO, but any such dates will be estimates only and time for performance by Livewire will be of the essence. If Livewire does not meet a performance or milestone date specified in a IO, Livewire must use reasonable endeavors to remedy the delay and provide the relevant service as soon as practicable.

Livewire shall meet with the Advertiser and shall work with the Advertiser’s third-party consultants when reasonably requested.

Nothing in this Agreement shall prevent Livewire from providing services the same as, or similar to, the Services to any other person or entity.

Unless otherwise agreed in writing, the Advertiser acknowledges that Livewire does not warrant that the Services will achieve any objective, reach any audiences, achieve any number of viewers or lead to any particular outcome or result.

ADVERTISING MATERIALS

Except as provided in the IO, Advertiser is solely responsible for creating and delivering to Livewire all advertising materials to be displayed on a Media Company Property. Advertiser shall provide all Advertising Materials in accordance with Livewire’s deadlines, policies, and specifications in effect from time to time (the “Specifications”) which are hereby incorporated by reference into this Agreement. Livewire will not issue any credits or provide any alternative Campaign options because of any problems with the Advertising Materials, or any other errors made by Advertiser.

Livewire may, at its sole and absolute discretion, reject or cancel any Advertising Materials, Ads, or any portion thereof prior to the launch of a campaign as set forth in the IO.

If Livewire performs any work on deliverables, Advertising Materials, or advertisements, as defined in the IO, then Advertiser will be responsible for payment in full for this work, even if Advertiser timely cancels an IO or campaign as permitted in the IO.

Advertiser agrees to pay Livewire for its work to correct errors in Advertising Materials on a time and materials basis in accordance with Livewire’s rate card. Livewire will not be required under any circumstances to make more than two (2) rounds of revisions. Advertiser must pay Livewire for this work even if Advertiser timely cancels an IO or campaign as permitted in the IO.

If Advertiser delays in providing the Advertising Materials to Livewire or if the Advertising Materials are not completed on time, then the Advertiser will still be responsible in full for the costs and fees for any page takeovers or custom units.

If Advertiser delays in providing the Advertising Materials to Livewire or if the Advertising Materials are not completed on time, then the Advertiser will still be responsible in full for the costs and fees for any page takeovers or custom units.

THE ADVERTISER’S OBLIGATIONS

The Advertiser shall pay the Fees and all Disbursements to Livewire in accordance with Section 2 and as set forth in the IAB Terms and Conditions.

The Advertiser shall provide reasonable and timely assistance to Livewire in matters relating to the Services, such as responding to queries, providing any consents or approvals (for example, for media plans) or providing Advertising Materials or other reasonable information requested by Livewire.

The Advertiser shall ensure that its third-party consultants will cooperate with Livewire in a reasonable and timely manner in matters related to the Services.

Where Livewire is required to comply with any third-party terms and conditions to enable it to provide the Services, Livewire may request that the Advertiser also agree to comply with such terms. If such a request is made, Livewire must provide the Advertiser with a copy of the terms and conditions, and both parties must negotiate in good faith to agree on the extent to which the Advertiser is able to be bound by them.

The Advertiser agrees that it will not, directly or indirectly:

REPORTING & DATA

To generate a report, Advertiser must allow Livewire to use first party numbers. Unless specifically set forth otherwise in the IO, multiple reports will be provided on a monthly basis. Reports created under the IO will use data and calculations provided by Google Ad Manager (not DFP for Publishers), Magnite or MOAT (“Livewire’s Vendors”) depending on booking and inventory. Livewire reserves the right to add or remove Livewire Vendors. Both Livewire and Livewire’s Vendors create data. In addition, custom campaigns may have specialized data and reporting as set forth in the IO for that campaign. Livewire will have sole and exclusive ownership of all such data created under the IO. Livewire reserves the right to sell Advertiser data but will inform the Advertiser prior to selling such data.

INTELLECTUAL PROPERTY & INDEMNITY

Nothing in this Agreement shall have the effect of transferring or assigning ownership of, or an interest in, any Intellectual Property rights as between the parties other than as specifically set out in this agreement, or otherwise agreed in writing.

The parties acknowledge and agree that:

Livewire is the absolute legal and beneficial owner of the Livewire IPR; and

Advertiser is the absolute legal and beneficial owner of the Advertiser IPR.

Any Intellectual Property Rights developed by Livewire specifically for the Advertiser pursuant to this Agreement or a IO (other than any derivative works, modifications, enhancements or improvements to the Livewire IPR, or as otherwise agreed in writing between the parties), shall be Bespoke Contract Material.

The Supplier and its licensors will retain ownership of all Bespoke Contract Material, excluding the Advertiser IPR, until payment of all Fees and Disbursements due under all Services provided under a IO has been made in full by the Advertiser to Livewire.

Upon payment in full of the Fees and Disbursements, ownership of all work product shall vest in the Advertiser.

Notwithstanding any of the above, this Agreement does not in any way grant the Advertiser with ownership of, a license to, or confer the right to use, any Third Party IPR unless otherwise specifically agreed in writing in a IO (and only where Livewire is permitted by that third party to do so).

The Advertiser hereby grants Livewire:

a royalty-free, non-exclusive, non-transferrable license for the Term to use such Advertiser IPR (including but not limited to brand names, creative media and any other related materials or information) as is necessary for Livewire to deliver the Services, together with the right to grant sub-licenses on the same terms to Livewire’s subcontractors to the extent necessary for Livewire to deliver the Services; and

a royalty-free, non-exclusive, non-transferrable and perpetual license to use any work productl for Livewire’s own internal and external marketing and promotional purposes (including but not limited to pitches, capability statements, awards submissions, and online and offline marketing of the Livewire business).

The Advertiser warrants to Livewire that:

It has, or will have, all rights in and to all Advertiser IPR and all other materials made available by the Advertiser to Livewire which are required to enable Livewire to perform the Services;

Livewire’s use of the Advertiser IPR will not infringe any third-party rights (including third party Intellectual Property Rights),

Advertiser’s IPR is not offensive, misleading, defamatory, racist, sexist or indecent and shall comply with all applicable laws and regulations.

Livewire warrants to the Advertiser that:

It has, or will have, all rights in and to all Livewire IPR and all other materials made available by Livewire to the Advertiser in the provision of the Services;

The Advertiser’s use of Livewire IPR will not infringe any third-party rights (including third party Intellectual Property Rights),

Livewire IPR is not offensive, misleading, defamatory, racist, sexist or indecent and shall comply with all applicable laws and regulations.

Each party indemnifies the other from any claims, losses, charges or damages (including interest, penalties and legal costs) resulting from a breach of the warranties provided in Sections 8.g and 8.h.

In addition to those indemnification obligations otherwise set forth in the IAB Terms, Advertiser agrees to indemnify, defend, and hold harmless Livewire and its employees, agents, and affiliates against any and all expenses, costs, losses, and liability (including reasonable attorneys’ fees) incurred in connection with any third party claims or administrative or criminal investigations or proceedings arising out of or related to (i) any breach of Advertiser’s representations, warranties, or covenants hereunder, (ii) the publication of any advertisement as contemplated hereunder, and/or (iii) any material, product, or service to which consumers can link through any Advertising Materials and advertisements.

LOCAL COUNTRY AGREEMENTS

The parties acknowledge that, if required, the provision of Services outside the Territory may require that a separate agreement ("Local Country Agreement") be executed between the Advertiser and Livewire (or any member of that party’s corporate group located in the relevant region).

If a Local Country Agreement is required to perform Services outside the Territory, the parties must take all reasonable steps to ensure that the terms of any Local Country Agreement are on substantially the same terms as this Agreement, with any deviations from these terms limited to those which are either specifically relevant and agreed between the parties in relation to the particular Services to which the Local Country Agreement relates, or as required to ensure that the Local Country Agreement complies with the laws and regulations of the relevant country.

LIMITATION OF LIABLITY

Notwithstanding any other provision of this Agreement, to the extent permitted by law the maximum aggregate liability of Livewire to the Advertiser shall be an amount equal to the Fees (excluding Disbursements) paid by the Advertiser to Livewire under the relevant IO from which a claim arises.

In the event that either party is called upon to compensate the other for any loss caused by the first party’s wrongful or negligent act or omission, then the amount that required to compensate the other party shall be reduced in proportion to the extent that the loss or damage was caused by or contributed to by the other party.

A party seeking damages pursuant to this Agreement must take reasonable steps to mitigate its loss.

SUBCONTRACTOR

Livewire may subcontract any or all of its rights or obligations under this Agreement without the consent of the Advertiser.

Notwithstanding Section 11.1, Livewire shall remain liable for the performance of its obligations pursuant to this Agreement.

DISPUTE RESOLUTION

In the IAB Terms and Conditions, Section XIV, subsection d shall have Delaware as choice of law and Delaware as exclusive venue.

COMPLIANCE

Information containing personal data will be handled in accordance with applicable US Federal and State privacy laws and regulations (and including, where relevant, the GDPR and equivalent laws and regulations of other regions). If for the performance of the Services it is necessary to exchange personal data, the Parties shall determine their respective positions towards each other (for example, as controller, joint controllers or processor under GDPR) as soon as possible and, where required, implement these in a separate written agreement or take such other actions are as necessary to remain compliant with the applicable privacy laws and regulations.

INTERPRETATIONS

In the event of any inconsistency between the IAB Terms and Conditions, the corresponding Insertion Order and the Addendum, the superiority of governing terms and conditions are: first, the IO; second, the this Agreement; and third, the IAB Terms and Conditions.

INFLUENCERS

Livewire may contract with “Influencers” who are independent contractors and not Livewire employees. Advertiser understands and agrees that Livewire’s relationship with these Influencers is limited to the terms of each independent contractor agreement. Advertiser makes no representations or warranties as to the activities or conduct of the Influencers. As independent contractors, these Influencers may express their own opinions online in a number of different forums which are outside the scope of these independent contractor agreements. Nothing contained herein shall place the parties in the relationship of partners, joint ventures, principal-agent, or employer-employee and neither party shall have any right to obligate or bind the other in any manner whatsoever. If any term or condition of the Agreement is held to be invalid, void, or otherwise unenforceable by any court of competent jurisdiction, that holding shall in no way affect the validity or enforceability of any other term or condition of the Agreement, unless enforcing the balance of the Agreement would deprive either party of a fundamental benefit of its bargain. Livewire shall make reasonable efforts to ensure that all bloggers will comply with all applicable laws and governmental regulations. To do so, Livewire will take the following steps: 1) notify bloggers that they will be expected to only write about Advertiser’s products in a truthful manner that represents the bloggers’ actual opinions about the products, and will make no claims that would require substantiation; 2) will not write about any competitive products of Advertiser’s products, specifically, will not disparage any such products in blogs; 3) to the extent any blog includes material which Advertiser wishes to remove due to failure to comply with requirements of this Agreement, Livewire will use its reasonable efforts to complete such removal.