SMALL BUSINESS CERTIFICATION AGREEMENT
This SMALL BUSINESS CERTIFICATION AGREEMENT (this “Agreement”) is made by and between the DIGITAL ADVERTISING ALLIANCE (“DAA”), with a business address of 1615 L St., NW, Suite 1100, Washington, DC 20036, and the entity identified below (the “SB User”). DAA and SB User are each a “party” to this Agreement and collectively, the “parties” to this Agreement.
WHEREAS SB User desires to obtain certification to use the DAA Icon (as defined below) only for the purpose of signifying and certifying SB User’s compliance with the Self-Regulatory Principles for Online Behavioral Advertising (as further set forth herein); and
WHEREAS, DAA is willing to grant such certification in accordance with and subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants contained herein, and of other good and valuable consideration, the receipt (per the terms of this agreement) and sufficiency of which are hereby acknowledged, the parties hereto, intending legally to be bound, hereby agree as follows:
TERMS AND CONDITIONS
- DAA ICON. The “DAA Icon” (as such term is used in this Agreement) shall mean the certification mark along with accompanying text (e.g., “Ad Choices”, “Why did I get this ad?”, “Interest Based Ads”) identified by the DAA on its Web site, www.aboutads.info (the “DAA Site”) or as presented in accordance with the DAA’s Ad Marker Creative Guidelines, as may be amended and updated by the DAA from time to time.
- GRANT AND RESTRICTIONS.
(a) Grant of Rights. Subject to the terms and conditions of this Agreement, the DAA hereby grants, and SB User hereby accepts, a limited, revocable, non-transferable, non-sublicensable, and non-exclusive grant to use only during the term of this Agreement the DAA Icon only for the purpose of signifying and certifying SB User’s compliance with the Self-Regulatory Principles for Online Behavioral Advertising (the “Principles”). The DAA Icon shall be made available to SB User solely in accordance with those instructions and guidelines found at the DAA Site, and SB User may only (i) place the DAA Icon on the web site(s) that have been identified and made known by SB User to the DAA in writing, and (ii) use the DAA Icon to highlight that SB User is certified to be in compliance with the Principles. SB User further acknowledges that it may only use the DAA Icon in the form served by Quantcast Corporation or DAA’s other designated icon host provider (the “DAA Icon Host”).
(b) Authorized User. DAA and SB User mutually represent and warrant that it has authority to (i) enter into this Agreement, (ii) make the representations and warranties contained herein, and (iii) commit to the duties, obligations and covenants set forth hereunder. References to “SB User” throughout this Agreement shall be restricted to SB User, its subsidiaries and affiliates, as defined in the Principles, and each of its employees, agents, and contractors that are specifically requested by SB User to use, manage and monitor its use of the DAA Icon solely for SB User’s benefit and in compliance with this Agreement. Except as otherwise expressly provided herein, SB User may not sub-license or otherwise permit a third party to use the DAA Icon for any purpose without the DAA’s express prior written approval. SB User shall not have the right or power, express or implied, to bind the DAA, and any right not expressly granted under this Agreement in and to the DAA Icon is hereby reserved by the DAA. SB User acknowledges that it is and shall remain responsible for the conduct of its employees, agents and contractors at all times during the term of this Agreement and thereafter in connection with or arising out of their acts or omissions in respect of this Agreement and the Principles.
(c) Restricted Conduct. SB User may not modify, tamper, skew, alter, create derivative work(s) of, reproduce, publish, license, sell, exploit, rent, lease, grant a security interest in, transfer any right(s) in, use on behalf of any other entity or person, or otherwise use in any manner not expressly permitted herein the DAA Icon or any part thereof, including, without limitation, as a domain name, keyword search term, or SB User account name. SB User shall have no right to apply for or otherwise seek a registration or ownership interest of any kind with respect to the DAA Icon or any icon, logo or design similar thereto. In order to promote the value and goodwill of the DAA Icon and the intellectual property derived therefrom, SB User agrees that under no circumstances during the Term hereof and thereafter shall it assert or contest any ownership rights in and to the DAA Icon or the intellectual property rights derived therefrom in any action or proceeding of whatever kind or nature, nor shall SB User take any action that may prejudice or adversely affect the DAA’s rights in the DAA Icon or the intellectual property rights therein. SB User may not do anything to render such intellectual property generic, weaken its validity or diminish its associated goodwill. All legends, trademarks, trade names, copyright legends, and other identifications appearing on the DAA Icon may not be removed, altered, or defaced by SB User.
(d) SB User Information. Prior to SB User’s placement or use of the DAA Icon and from time to time during the term hereof as requested by the DAA, SB User will provide the DAA (or any third party that it may designate), the list of all Web site domains on which the DAA Icon shall appear.
(e) File Naming Convention. SB User acknowledges and agrees that its use of the DAA Icon shall strictly comply with the file naming conventions and requirements promulgated by the DAA for the identification of the DAA Icon within any programming code.
- USER OBLIGATIONS. By using the DAA Icon, SB User agrees to abide by all applicable laws, rules and regulations (including without limitation, the Principles) which govern its use of the DAA Icon. SB User also represents that the person executing this Agreement on behalf of SB User has the full legal authority to bind SB User and that SB User will, at all times, provide true, accurate, current, and complete information when submitting information or materials to the DAA, including, without limitation, when SB User provides information via any registration or submission form on the DAA Site. SB User covenants to the DAA that it has and will continue to undertake all action(s) necessary to enter into and fully perform its obligations under this Agreement, and SB User acknowledges and permits the DAA to monitor and audit SB User’s compliance with these provisions, as the same may be amended and updated from time to time in order to ensure SB User’s compliance and satisfaction. SB User acknowledges and agrees that it is SB User’s responsibility, and SB User shall be responsible and liable for any failure, to maintain compliance with the terms and conditions of this Agreement or to monitor SB User’s use (or any of its employees’, contractors’, or agents’ use) of the DAA Icon in order to ensure compliance with the terms and conditions of this Agreement. The DAA and the DAA Icon Host assume no responsibility or liability for any claims or obligations that may result directly or indirectly from the communications, contracts, or interactions SB User establishes using the DAA Icon.
- PROPRIETARY RIGHTS. As between the DAA and SB User, the parties agree the DAA is the sole and exclusive owner of all right, title, and interest in and to the DAA Icon and its related logos, designs, and materials. The DAA Icon and any related logos, designs, and materials are the trademarks of DAA and any and all copyrights in such matter are owned by DAA. Accordingly, SB User acknowledges and agrees that except as provided herein, the provisions of this Agreement do not convey to SB User any right, title or ownership interest of any kind in or to the DAA Icon. SB User shall not intentionally utilize the DAA Icon in any manner that interferes with, tarnishes, or diminishes the value or good will of the DAA Icon or otherwise harms the reputation of the DAA and/or the committee members comprising the DAA. SB User agrees that it shall in no way contest or deny the validity of, or the right or title of DAA in or to the DAA Icon and shall not encourage or assist others directly or indirectly to do so, during the lifetime of this Agreement and thereafter. DAA shall have the exclusive worldwide right to file and prosecute trademark applications, certification mark applications, renewals, or other documentation regarding the DAA Icon, and SB User shall not take any action inconsistent with this right or which relates, directly or indirectly, to the registration of the DAA Icon (or any part thereof) with any trademark office, domain name registrar, service provider, or governmental authority. SB User agrees to, promptly notify the DAA in writing of any of the following promptly after becoming aware of same: (a) any infringement, dilution, and/or unauthorized use of the DAA Icon; (b) any unfair competition relating to the DAA Icon; (c) any other apparent violation of the rights of DAA; and (d) any violation of any right or certification granted to SB User under this Agreement. The DAA and/or its designee shall have the sole right to enforce any right, bring any proceeding, claim, or defense, or otherwise settle any claim for any infringement, dilution, or unfair competition relating to the DAA Icon. In addition, SB User shall cooperate with DAA, at DAA’s expense, for any out-of-pocket costs incurred by SB User, in any efforts by DAA to bring such actions. In the event that the DAA Icon is adjudicated in any suit or proceeding to infringe the intellectual property rights of any third party, or in the event that DAA reasonably believes that it is likely that the DAA Icon will be found to infringe, dilute, or constitute a misappropriation, or likely to be enjoined, the DAA reserves the right to instruct SB User to immediately cease using the DAA Icon at issue and SB User agrees that, upon receiving any such instruction from DAA, SB User will immediately cease all use thereof. SB User acknowledges and agrees that DAA and the DAA Icon Host shall have no liability for the cessation of use of any DAA Icon in accordance with this provision.
- USAGE GUIDELINES & APPROVAL. SB User shall use the DAA Icon in a manner that reflects positively at all times on DAA and the DAA Icon. The DAA Icon must be displayed in the official colors and format and in the same form as served by the DAA Icon Host. SB User’s placement or use of the DAA Icon shall be in a manner that solely communicates SB User’s certification and adherence to the Principles, but in no event shall such use of the SB User Icon suggest or imply (i) a mischaracterization of the relationship with DAA or (ii) the DAA’s promotion or endorsement of any product, service, program, cause, campaign, Web site, or information, unless the SB User has procured the DAA’s separately provided written consent for such use. As condition of certification, SB User acknowledges and agrees that DAA, or any third party DAA designates or reasonably deems necessary to act on its behalf, has the right to monitor SB User’s use of the DAA Icon and ensure compliance with the Principles or this Agreement. Nothing herein, however, is either a representation or a warranty by DAA or the DAA Icon Host that SB User’s products or services (or any portion thereof) complies with applicable federal, state, and local laws, rules, orders or regulations.
- CONFIDENTIALITY. SB User acknowledges and agrees that in connection with this Agreement and use of the DAA Icon, SB User may receive or gain access to certain confidential, proprietary, or sensitive information of the DAA and/or its licensors and suppliers, including, without limitation, information concerning pricing and marketing (the “Confidential Information”). Confidential Information shall not include any information that (i) was in the public domain at the time it was communicated; (ii) entered the public domain through no fault of recipient subsequent to the time it was communicated; (iii) was in the recipient’s possession free of any obligation of confidence at the time it was disclosed; or (iv) was disclosed to the recipient by a third party who was free of any obligation of confidence. SB User agrees to secure, protect and prevent the disclosure of the DAA’s Confidential Information (and/or those of the DAA’s licensors and suppliers) to any third party, and SB User agrees that it shall employ at least as great a degree of care as SB User uses to maintain the confidentiality of its own confidential information of a similar nature, but in no event using less than reasonable efforts. SB User therefore shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement. In addition, SB User may not disclose this Agreement and/or its terms to any third party, except as SB User may reasonably be required to enforce the terms of this Agreement, and/or to SB User’s attorneys or accountants or as otherwise required by law, subject in all cases to any permitted third party or person being under the same obligation to keep the information confidential as called for in this Agreement. All Confidential Information of DAA shall remain the exclusive property of DAA. These restrictions do not apply to Confidential Information which SB User (i) discloses in response to a valid order of a court or other governmental body, but only to the extent of and for the purposes of such order, and only if SB User first notifies the DAA of the order and permits the DAA to seek an appropriate protective order or move to quash or limit such order; or (ii) discloses with written permission of the DAA, in compliance with any terms or conditions set by the DAA regarding such disclosure. Upon termination or expiration of this Agreement, SB User shall return to the DAA or destroy, at the request of the DAA, all Confidential Information of the DAA and certify in writing to the DAA, within ten (10) days following termination or expiration, that all such Confidential Information has been returned or destroyed.
- FEES AND EXPENSES. Under this Agreement, the DAA charges no fee for use of the DAA Icon to entities (and their affiliates and subsidiaries (as defined in the Principles)) generating together less than (US)$15,000,000 per year in overall gross revenue and less than (US)$2,000,000 per year in gross revenue from online behavioral advertising (as defined by the Principles). SB User hereby represents that it (and its affiliates and subsidiaries (as defined in the Principles) generates less than (US)$15,000,000 per year in overall gross revenue and less than (US)$2,000,000 per year in gross revenue from online behavioral advertising, and SB User further agrees to notify immediately the DAA when its (and its affiliates and subsidiaries (as defined in the Principles)) annual overall gross revenue exceeds (US)$15,000,000 per year and its annual online behavioral advertising gross revenue exceeds (US)$2,000,000, whereupon SB User acknowledges and agrees that this Agreement will automatically terminate without notice and SB User will be required to enter into a new agreement with the DAA if it continues to use the DAA Icon. SB User shall otherwise bear its own costs and expenses incurred in connection with its compliance of the terms and conditions set forth herein
- TERM & TERMINATION.
(a) Term. This Agreement will commence upon the Effective Date and will remain in effect until terminated by either party upon written notice or by DAA in accordance with Section 7.
(b) Termination for Breach. This Agreement will also terminate automatically if SB User fails to comply with any of the terms and conditions described herein, with termination effective without notice. SB User acknowledges and agrees that the DAA will have the sole right to determine in its reasonable discretion whether SB User has engaged in any activity that violates any term or condition of this Agreement.
(c) Termination for Convenience. SB User may also terminate this Agreement at any time by notifying DAA in writing and ceasing all use of the DAA Icon. DAA may terminate this Agreement at any time by notifying SB User.
(d) Effect of Termination. Upon termination of this Agreement, the right to use the DAA Icon granted herein will immediately terminate and SB User shall immediately cease all use of the DAA Icon, remove the DAA Icon from all materials (electronic or printed), and otherwise destroy or delete all materials displaying, incorporating or depicting the DAA Icon. DAA and the DAA Icon Host shall also not be responsible or liable for any damages or loss, such as loss of sales or profits, as a result of any termination of this Agreement in accordance with this section. In addition to the “Miscellaneous” section below, the provisions concerning DAA’s proprietary rights, indemnity, warranty disclaimer, limitation of liability, termination, and governing law will survive the termination of this Agreement.
- WARRANTY DISCLAIMER. THE DAA ICON IS PROVIDED “AS IS” AND “AS AVAILABLE,” DAA AND DAA ICON HOST HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. DAA AND DAA ICON HOST DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE PROVISION OF THE DAA ICON BY THE DAA ICON HOST, OR THE RESULTS OF THE SB USER’S USE, OF THE DAA ICON.
- LIMITATION OF LIABILITY. DAA AND DAA ICON HOST SHALL NOT BE LIABLE TO SB USER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER AN ACTION IS BASED UPON CONTRACT, TORT, OR OTHERWISE. DAA AND DAA ICON HOST shall ALSO have no liability UNDER THIS AGREEMENT for SB USER’S products or services or their quality, price, method of sale, or distribution. MOREOVER, DAA’S AND DAA ICON HOST’S ENTIRE LIABILITY FOR ANY AND ALL CLAIMS SHALL BE LIMITED TO $100. THE PARTIES AGREE THAT THE LIMITATIONS IN THIS SECTION ARE A BARGAINED-FOR EXCHANGE AND A MATERIAL CONDITION AND PREMISE OF THIS AGREEMENT FOR THE USE OF THE DAA ICON.
- INDEMNITY. SB User agrees to defend, indemnify, and hold harmless DAA, DAA Icon Host and its members, affiliates, employees, agents, directors, officers, attorneys, contractors and agents (including the DAA Icon Host), successors, and assigns from and against any and all third party claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from (i) SB User’s mis-use of the DAA Icon, (ii) violations of applicable law not proximately caused by DAA, (iii) SB User’s products and services, and (iv) any breach by SB User of this Agreement. SB User shall bear full responsibility for all of the foregoing claims for which it is responsible; provided however, that (i) SB User shall keep DAA informed of, and consult with DAA in connection with the progress of each claim; and (ii) SB User shall not have any right, without DAA’s written consent, to settle any claim if such settlement arises from or is part of any criminal action, suit, or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of DAA and/or any of its affiliates. Notwithstanding any of the foregoing, DAA shall have the right, in its absolute discretion, to employ attorneys of its own choice and to institute or defend any claim.
- GOVERNING LAW. This Agreement shall be construed and interpreted in the English language only, and all communications and notices to be made or given pursuant to this Agreement shall be in the English language. This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the District of Columbia. All actions or claims related to or associated with this Agreement will be brought solely in the federal or state courts in District of Columbia, U.S. and all parties to this Agreement expressly agree to be subject to the jurisdiction of such courts. SB User also acknowledges that any breach, threatened or actual, of this Agreement will cause irreparable injury to DAA, such injury would not be quantifiable in monetary damages, and DAA would not have an adequate remedy at law. SB User therefore agrees that DAA shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of SB User’s obligations under any provision of this Agreement. Accordingly, SB User hereby waives any requirement that DAA or its licensors or suppliers post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to DAA to enforce any provision of this Agreement. Moreover, SB User acknowledges that DAA makes no representation that use of the DAA Icon or compliance with the Principles is appropriate or legally acceptable in other locations outside the United States. SB User uses the DAA Icon on SB User’s own volition and is responsible for compliance with all applicable local laws governing privacy, trade, and information security.
- MISCELLANEOUS. This Agreement and the Principles set forth herein the entire agreement between SB User and DAA with respect to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written between SB User and DAA with respect to the DAA Icon. But, notwithstanding any other term or condition herein, SB User acknowledges and agrees that the DAA Icon Host is a third party beneficiary under this Agreement with respect to the warranty disclaimers, indemnities, and limitations of liability. Failure to insist on strict performance of any of the terms and conditions of this Agreement will not operate as a waiver of that or any subsequent default or failure of performance. If any provision or any portion of this Agreement is construed to be illegal, invalid or unenforceable, such provision or portion thereof shall be deemed stricken and deleted from this Agreement to the same extent and effect as if it were never incorporated herein, but all other provisions of this Agreement and the remaining portion of any provision that is construed to be illegal, invalid or unenforceable in part shall continue in full force and effect. Headings are convenience only and have no legal or contractual effect. SB User and DAA are independent contractors. No joint venture, partnership, employment, or agency relationship exists between SB User and DAA as result of this Agreement. SB User may not assign or otherwise transfer this Agreement. DAA may make modifications or changes in the DAA Icon and the Principles at any time and for any reason. If DAA makes such a modification or change, DAA will provide notice of such change at its designated Web site for at least 30 days. SB User should periodically review the DAA Site and the Principles for any changes. Any continuing use of the DAA Icon following such thirty (30) day period will be deemed conclusive acceptance of the modification or change. If SB User does not agree with any change, SB User shall immediately terminate this Agreement and cease all use of the DAA Icon as set forth above. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same Agreement. The exchange of copies of this Agreement and of signature pages by facsimile or electronic scanned transmission will constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile or electronic scanned transmission will be deemed to be their original signatures for all purposes.