Version Dated: November 5, 2024

Terms for the Representation of Digital Ad Inventory

1.  Definitions

1.1. “Ad Guidelines” means the VIZIO Ad Guidelines available at https://www.vizio.com/en/ad-guidelines.

1.2. “Agreement” means the IO together with these Terms.

1.3. “Applicable Law” means all applicable federal, state, and local laws, rules, regulations, and judicial and administrative decisions. Applicable Law includes, but is not limited to: (i) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020; (ii) the Virginia Consumer Data Protection Act of 2021, Va. Code Ann. § 59.1-571 to -581; (iii) the Colorado Privacy Act of 2021, Co. Rev. Stat. § 6-1-1301 et seq.; (iv) Connecticut Public Act No. 22-15, “An Act Concerning Personal Data Privacy and Online Monitoring”; (v) the Utah Consumer Privacy Act of 2022, Utah Code Ann. § 13-61-101 et seq.; (vi) the Children's Online Privacy Protection Act of 1998 and its amending rules (“COPPA”); and (vii) all other equivalent laws and regulations in any relevant jurisdiction relating to Personal Information and privacy, and as each may be amended, extended, or re-enacted from time to time. “Compliance” with Applicable Law means compliance in a manner that meets or exceeds the requirements for such Applicable Law.

1.4.  “Confidential Information” means information that a party designates as confidential or, under the circumstances surrounding disclosure, a reasonable person would regard as confidential. Confidential Information will not include information that: (i) is in or enters the public domain without breach of the Agreement; (ii) the receiving party receives from a third party who is entitled to disclose such information to receiving party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without reference to the disclosing party’s Confidential Information.

1.5.  “Inventory” means the digital ad inventory on any Publisher Property within the Territory that is

made available from Publisher to VIZIO under the IO.

1.6. “IO” means the mutually agreed upon insertion order under which VIZIO may represent the Inventory.

1.7.   “Net Advertising Revenue” means the gross revenue recognized and actually received by VIZIO from VIZIO’s sale of Inventory, less ad serving fees and other fees incurred by VIZIO to represent the Inventory, including fees payable to supply side and other ad tech platforms.

1.8.  “Personal Information” means any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, as well as any other personal information specified under Applicable Law. Personal Information specifically includes any unique identifier or online identifier, such as IP addresses, to the extent such identifier can reasonably be linked to a particular person or household.

1.9.  “Prohibited Content” means all content displayed on any Publisher Property that violates the Agreement, the Ad Guidelines, or Applicable Law and/or is otherwise illegal.

1.10.  “Publisher” means the entity or individual that is a party to these terms with VIZIO.

1.11.  “Publisher Property” means any website, mobile site, or applications owned and/or operated by

Publisher, or for which Publisher has authority to sell Inventory.

1.12.  “Terms” means these Terms for the Representation of Digital Ad Inventory.

1.13.  “Territory” means the United States of America or any territory thereof.

1.14.  “VIZIO” means VIZIO Services, LLC.

 

2.  Representation

2.1.  Right to Represent. Publisher hereby grants VIZIO the non-exclusive right to represent the Inventory under each IO. VIZIO may represent the Inventory through programmatic channels (including supply side and other ad tech platforms) and on an impression basis only. VIZIO may represent the Inventory alone or bundled with other digital ad inventory.

2.2.  IO Details. From time to time, Publisher and VIZIO may execute IOs. As applicable, each IO will specify: (a) the type(s) of Inventory, (b) the payment model (either a set CPM rate for such Inventory payable to Publisher (“Publisher CPM”) or the percentage of Net Advertising Revenue payable to Publisher), (c) the start and end dates of the campaign, and (d) any other terms as agreed between the parties. Acceptance of the IO and these Terms will occur upon written (which, unless otherwise specified, will include paper or email communication) approval of the IO by Publisher and VIZIO. Modifications to the originally submitted IO will not be binding unless approved in writing by both Publisher and VIZIO.

2.3.  Pricing. VIZIO has complete discretion to negotiate and set pricing and payment terms with respect to the representation of the Inventory.

2.4.  No Guarantee. VIZIO does not guarantee the successful sale of any Inventory, including with respect to placements, fill rates, volume of impressions delivered, or amounts payable to Publisher. VIZIO will have no obligation to pay Publisher for unsold Inventory.

2.5.  Technical Integration. VIZIO and Publisher will use commercially reasonable efforts to ensure that the Inventory functions properly with the systems and platforms used by VIZIO to represent the Inventory. VIZIO will supply advertising tags to Publisher for this purpose. The parties will promptly respond to each other for ad serving, fill rate issues, frequency capping (e.g. the same ad appears no more than three (3) times per twenty four (24) hour period per viewer), and any other matter of technical integration. Publisher will make best efforts to ensure that all ad inventory is free of automated, fraudulent or otherwise invalid traffic (“IVT-Free”).

2.6.  Reporting. Within thirty (30) days of the end of each calendar month, VIZIO will report to Publisher the amount payable to Publisher for such month (the “Publisher Payment”) as well as the number of impressions served into Inventory in such month (each, a “Report”). VIZIO’s tracking and reporting of the Inventory will be the controlling measurement used for calculation of payments to Publisher and confirmation of the delivery of the Inventory to VIZIO. Publisher will have five (5) days after receiving VIZIO’s report to notify VIZIO of any suspected discrepancy. At VIZIO’s sole discretion, VIZIO may make reasonable efforts to identify and resolve any discrepancies with Publisher.

2.7.  Payment. VIZIO will pay Publisher the Publisher Payment due within ninety (90) days after the end of the calendar month in which the associated Report is due. VIZIO reserves the right to recoup or not pay any portion of the Publisher Payment that may be attributable to fraud or deemed uncollectible. All amounts payable by VIZIO to Publisher are exclusive of taxes. Notwithstanding the foregoing, the parties will work with one another in good faith to accurately determine their respective tax liability and to minimize such liability, to the extent legally permissible. Furthermore, if VIZIO is required by law to withhold any taxes from the Publisher Payment (the “Withholding Taxes”), VIZIO may withhold such Withholding Taxes and pay them to the appropriate taxing authorities, unless Publisher provides VIZIO a certificate of exemption withholding. A Publisher Payment will not be grossed up on account of Withholding Taxes.

2.8.  Marketing. Publisher hereby grants VIZIO the right to list the Publisher Properties associated with Inventory in pitch materials to prospective advertisers, to report such properties as being part of VIZIO’s advertising inventory program, and to use Publisher’s trademarks and logos and images of the properties in connection with exercising the foregoing right.

2.9.  Confidentiality. Each party agrees to protect the other’s Confidential Information using at least the same degree of care that it uses to protect its own confidential information of similar importance, but no less than a reasonable degree of care. The recipient agrees to use the other’s Confidential Information solely for the purpose of exercising its rights and performing its obligations under the Agreement and agrees not to use the Confidential Information for any other purpose, or for its own or any third party’s benefit, without the express prior written consent of an authorized representative of the disclosing party. The recipient further agrees not to disclose or disseminate the other’s Confidential Information to anyone other than those of its employees, contractors and auditors who have a need to know and who are bound by a written agreement or professional obligation that prohibits unauthorized use or disclosure of the Confidential Information. The recipient may disclose the other’s Confidential Information to the extent required by law, provided that it takes reasonable steps to notify the other of such requirement before disclosing the Confidential Information and to obtain protective treatment of the Confidential Information.  

2.10.  Privacy and Intellectual Property. Publisher will only make Inventory available on those Publisher Properties that comply with Applicable Law in the handling and/or collection of Personal Information. Publisher Properties will provide all privacy policies, notices, and disclosures required by Appliable Law. In addition, Publisher Properties will provide and honor all user privacy controls required under Applicable Law, including, but not limited to, user opt-outs from the sale or sharing of Personal Information or behavioral advertising. Publisher will implement such user privacy controls, such as user opt-outs, in any bid requests passed to VIZIO and will cooperate with VIZIO to communicate such privacy controls under Section 2.5 (Technical Integration). Publisher will not permit any Personal Information to be sent to VIZIO except as strictly necessary for the performance of the Agreement. Furthermore, Publisher will not provide any Personal Information to VIZIO that would be considered sensitive personal information under Applicable Law, including, but not limited to, precise geolocation, except as otherwise authorized by VIZIO in writing. Publisher is responsible for all content surrounding the Inventory.

2.11.  Warranties. Publisher represents and warrants that: (i) each Publisher Property on which Inventory is made available will: (a) not violate any Applicable Law nor contain Prohibited Content, and (b) properly categorize the inventory type for the site ID of the Publisher Property in accordance with VIZIO’s then current guidelines; (ii) only Inventory within the Territory will be made available to VIZIO for representation as set forth herein; (iii) it will comply with Applicable Law and, to the extent applicable, the Ad Guidelines; (iv) it will not pass any data to VIZIO that could be used to personally identify any person without obtaining such person’s consent to pass such data to VIZIO (including, without limitation, any personally-identifiable information or Personal Information passed via custom key-values or other parameters); and (v) it has, and will maintain throughout the term of the IO, all rights, authorizations, and licenses (including, without limitation, any copyright, trademark, patent, publicity, or other rights) that are required with respect to the Publisher Properties and to permit VIZIO to perform its obligations and exercise its rights as contemplated herein.

2.12.  Indemnity; Limits of Liability. Publisher will defend and indemnify VIZIO and its affiliates from and against any and all third party allegations, claims, or liabilities that (i) the Inventory and the content surrounding the Inventory violate the intellectual property rights of a third party or contain Prohibited Content; or (ii) Publisher has breached its obligations under Section 2.10 and/or its representations and warranties under Section 2.11. In no event will VIZIO or its affiliates be liable for any indirect, special, incidental, punitive, or consequential damages of any kind or nature whatsoever, relating to the Agreement or the transactions contemplated hereby, including, without limitation, lost profits or lost goodwill, regardless of whether such party has been advised of the possibility of such damage or if such damage could have been reasonably foreseen. The maximum aggregate liability of VIZIO arising out of the Agreement will be the amount payable to Publisher under the IO.

2.13.  Notices. Notices under the Agreement must be in writing and must be sent to the intended recipient by prepaid registered letter or commercial courier (e.g., UPS), at its address specified in the Agreement, as may be changed by a party upon notice. Notices will be effective on the date sent.

2.14.  Order of Precedence . Where a conflict or inconsistency exists between the documents concerning the representation of the Inventory, the following descending order of precedence applies: (a) these Terms, (b) the IO, or (c) any other agreement between the parties concerning Publisher’s digital ad inventory (such as a Video Programming License Agreement or Internet Applications Platform Agreement).

2.15.  Survival. Any provisions that expressly survive termination or expiration, or by their nature ought to survive termination or expiration, will survive, including, but not limited to, provisions regarding confidentiality, disclaimers, exclusions and limitation of liability, effect of termination, controlling law and jurisdiction, notices, and other provisions of interpretation and enforcement.

2.15.  Miscellaneous. The Agreement is to be governed and interpreted under the laws of California, without regard to conflicts of laws provisions. The exclusive jurisdiction and venue of any action with respect to the Agreement is the state courts of the State of California for Orange County or the United States District Court for the Central District of California. Neither party will assign any rights under the Agreement by operation of law or otherwise, except that a party may assign the Agreement in its entirety in connection with a merger, acquisition, sale of substantially all its assets, or other recapitalization or reorganization. Any purported assignment in violation of this paragraph is void. If for any reason a court of competent jurisdiction finds any term of the Agreement to be unenforceable, that term will be enforced to the maximum extent permissible to effect the intent of the parties, and the remainder of the Agreement will continue in full force and effect. No waiver of any breach of the Agreement will constitute a waiver of any prior, concurrent, or subsequent breach, and no waiver will be effective unless in writing and signed by the waiving party. No amendment to the Agreement will be binding unless in writing and signed by each party. Neither party will be liable for any delay or failure to perform its obligations hereunder due to any cause beyond its reasonable control. The Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party, including because of a party’s drafting or preparing the Agreement. Except as expressly provided herein, the rights and remedies of the parties under the Agreement are cumulative and are in addition to all other remedies available at law or in equity. The Agreement does not create any rights of enforcement in any person who is not a signatory. The Agreement creates no joint venture, partnership, employment, or agency relationship between the parties. The Agreement is the final, complete, and exclusive agreement regarding the subject matter of the Agreement, and supersedes all prior and contemporaneous negotiations and agreements, which are expressly merged into the Agreement.