Ad Inventory is sold by Customer directly to a Buyer on a guaranteed basis in a transaction negotiated and entered into between Customer and a Buyer through Rubicon Project’s cloud-based reserved order guaranteed automation service that enables buyers and sellers to discover, create and negotiate Ad Inventory packages (the “Guaranteed Orders Service”).
Each transaction entered into by Customer using the Guaranteed Orders Service for the sale of Ad Inventory on Customer Media to a Buyer shall be referred to as a “Guaranteed Order.”
2. Rubicon Project Seller Fees
For each Guaranteed Order, Customer will pay to Rubicon Project fees (the “GO Seller Fees”) in an amount equal to the Automation Fees percentage or the Marketplace Fees percentage, as appropriate, of the Media Cost (defined below) for that Guaranteed Order. The Automation Fees percentage and the Marketplace Fees percentage are set forth in the Exhibit to the Guaranteed Orders Schedule; the Marketplace Fee applies to transactions sourced by Rubicon Project (via the Guaranteed Orders Service or RP Technology), and the Automation Fee applies to transactions sourced by Customer’s sales team. Each transaction will be deemed to be sourced by Rubicon Project unless Customer and Rubicon Project agree in writing (email acceptable) that the transaction was sourced by Customer.
“Media Cost” means the amount at which Customer agrees to sell its Ad Inventory to the applicable Buyer for each Guaranteed Order.
3. Billing and Payment Terms
(i) Payment Terms. Subject to the provisions herein, the GO Ad Payment (defined below) for a Guaranteed Order, will be paid by Rubicon Project to Customer during the calendar month following the calendar month in which the Media Cost associated with such Guaranteed Order is received from the applicable Buyer. Generally, Rubicon Project will retain GO Seller Fees from amounts collected by Rubicon Project from Buyers for Ad Inventory before remitting GO Ad Payments to Customer, but Rubicon Project may invoice Customer for, and Customer will pay, GO Seller Fees not retained by Rubicon Project from amounts paid by Buyers.
“GO Ad Payment” for a GO Order means the Media Cost, net of GO Seller Fees, applicable Taxes that are Customer’s responsibility but are paid or payable by Rubicon Project, and fees associated with payment processing, chargebacks, refunds or notice of privacy practices. GO Ad Payments do not include fees, if any, charged by Rubicon Project to Buyers for use of the Guaranteed Orders Service.
Notwithstanding any provision to the contrary in a Direct Buyer Agreement (as defined below), Customer will not invoice or seek payment directly from Buyers for the Media Cost associated with Guaranteed Orders (except to the extent otherwise permitted herein), but instead will accept receipt of GO Ad Payments solely as described in this Section 3(i).
(ii) Reconciliation of GO Ad Payments: All GO Ad Payments made to Customer are subject to Reconciliation Adjustments:
“Reconciliation Adjustments” means monthly adjustments made by Rubicon Project to reconcile Customer’s account to address: (a) recovery by Rubicon Project of amounts paid to Customer for transactions: (i) generated by a Prohibited Activity, (ii) generated from Ad Inventory on Customer Media not preapproved by Rubicon Project, (iii) in excess of amounts received by Rubicon Project from the applicable Buyer[s] for those transactions; (b) reporting and statistical errors; (c) the uncollected balance of any GO Seller Fees owed to Rubicon Project if amounts collected by Rubicon Project from Buyers in a particular month are not sufficient to cover the GO Seller fees due Rubicon Project in such month; and (d) other amounts owed by Customer to Rubicon Project.
Rubicon Project reserves the right to recover distribution of or to delay payment of GO Ad Payments, as applicable: (1) for Reconciliation Adjustments, or (2) if Customer fails to complete any tax or reporting forms reasonably requested by Rubicon Project or to provide Rubicon Project with accurate tax information. If GO Ad Payments due in a particular month are less than $25, such amount will not be distributed unless Customer provides a written request for distribution in each instance.
4. Reporting and Discrepancies
(i) Daily Reporting. GO Ad Payments associated with a particular Guaranteed Order will be calculated based solely on the numbers and statistics designated by Buyer and Customer as the controlling measurement for that Guaranteed Order within the Guaranteed Order Service (either Buyer’s or Customer’s or their respective ad servers). Customer shall provide Rubicon Project with access to its reporting and statistics on Guaranteed Orders for the purposes of billing (where Customer’s statistics are the controlling measurement) and assisting in monitoring discrepancies. Customer will provide such access via an API key or a password-protected web-based log-in (which will be deemed Customer’s Confidential Information), or if the foregoing alternatives are not practical for Customer and Customer can only provide reporting and statistics to Rubicon Project via email, Customer must do on at least a daily basis. Any failure to provide reporting and statistics on a daily or more frequent basis to Rubicon Project will impede Rubicon Project’s ability to perform billing responsibilities and to provide daily delivered impression count reporting. If Customer fails to provide such access or reporting and statistics, then upon written notice from Rubicon Project (email acceptable) and an additional two (2) business days to cure, Rubicon Project will have the right to (a) pause any affected campaign and/or (b) suspend Customer’s access to the Service.
(ii) Discrepancies. Further, to the extent Customer desires to have Rubicon Project assist in managing discrepancies and minimizing campaign under-delivery in connection with one or all Guaranteed Orders, Customer will indicate such fact to Rubicon Project in writing (email acceptable). Such indication will authorize Rubicon Project to adjust impression counts and related parameters in Customer’s ad server in an effort to assist with managing such discrepancies. In any event, Rubicon Project reserves the right to pause any campaign showing a discrepancy of ten percent (10%) or more between Customer’s reporting and statistics and the applicable Buyer’s reporting and statistics.
(iii) Final Reporting. Customer shall provide final reporting and statistics for each Guaranteed Order (“Final Reporting”) within two (2) business days following the completion of the campaign that is the subject of such Guaranteed Order (“Final Reporting Deadline”); provided that if Customer’s statistics are not the controlling measurement for any Guaranteed Order, Customer shall ensure that the applicable Buyer provides such Final Reporting by the Final Reporting Deadline. Customer acknowledges that if Final Reporting is not provided to Rubicon Project by the Final Reporting Deadline, Rubicon Project may invoice Buyers and determine GO Ad Payments and GO Seller Fees based on current statistics in Rubicon Project’s sole and reasonable discretion.
5. Rubicon Project Relationship to Buyers
(i) Relationship with Buyers. This Order Form governs Customer’s use of the Guaranteed Orders Service, but does not govern the relationship between Customer and any Buyer with respect to Guaranteed Orders. Except to the extent that Rubicon Project has responsibility for Ad Inventory billing and payment, as specified herein, the relationship between Customer and Buyer with respect to each Guaranteed Order shall be governed by terms entered into directly between Customer and Buyer (a “Direct Buyer Agreement”), provided that such terms are not in any manner inconsistent with the terms of this Schedule. The Direct Buyer Agreement between Customer and a Buyer may be: (a) Customer’s own terms (“Custom Terms”), or (b) the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less Version 3.0 located at www.rubiconproject.com/IABTerms3.0 (the “IAB Terms”). If Customer would like Custom Terms to constitute the Direct Buyer Agreement between Customer and a particular Buyer, Customer must add its Custom Terms or a working link thereto into the GO for Sellers user interface and the applicable Buyer must agree to them. Otherwise, the GO Service will automatically designate the IAB Terms as the Direct Buyer Agreement between Customer and a Buyer. Rubicon Project will not be responsible or liable for Customer’s entry into, or failure to enter into, Custom Terms or obligations contained within Direct Buyer Agreements. By way of example but not limitation, Rubicon Project shall not be responsible or liable for: (A) make-goods or any reporting discrepancies between any Buyer and Customer, (B) claims by Buyers or Customer regarding any acts or omissions of Customer or any Buyer, (C) any failure by Customer or a Buyer to comply with the terms of the applicable Direct Buyer Agreement, or (D) enforcement of a Direct Buyer Agreement against a Buyer. For clarity, with respect to any Guaranteed Order that is governed by the IAB Terms, Rubicon Project shall not be deemed to be the “Media Company,” “Agency,” or “Advertiser” (as such terms are defined in the IAB terms).
(ii) Collection of GO Ad Payments. Rubicon Project is not obligated to pay GO Ad Payments for Ad Inventory to Customer in excess of amounts received by Rubicon Project from Buyer[s] for such Ad Inventory. Nothing in this Schedule shall require Rubicon Project to use more than commercially reasonable efforts to collect GO Ad Payments from Buyers. Similarly, nothing in this Section shall prohibit Customer from seeking to collect GO Ad Payments from a particular Buyer following written notice from Rubicon Project (email acceptable) that Rubicon Project is suspending its efforts to collect amounts owed from a particular Buyer due to an inability to collect from such Buyer despite the use by Rubicon Project of commercially reasonable efforts to do so. Rubicon Project is not required to bring collection actions or incur out-of-pocket costs (such as costs of retaining third-party collection agencies) and will not compromise Buyer obligations to pay GO Ad Payments in any material way without Customer’s written consent (email acceptable).
(i) In order for Customer to utilize the Guaranteed Orders Service and enable Rubicon Project to bill Buyers for Guaranteed Orders, Customer must either: (a) manually traffic the ad tags supplied by the Guaranteed Orders Service into Customer’s ad server in accordance with any reasonable trafficking instructions provided by Rubicon Project; or (b) provide Rubicon Project with ad server access (whether via API credentials or authentication or another mutually agreed to method).
(ii) The Guaranteed Orders Service may be integrated with third party media planning and buying systems (“Media Buying Systems”). Rubicon Project shall have the right to display and offer Customer’s Guaranteed Orders within the Guaranteed Orders Service to such Media Buying Systems. The information displayed within the Media Buying Systems will include only the details provided by Customer with respect to each Guaranteed Order (e.g. any name, trademarks, logos, dates, content types, ad formats, platforms, audience targeting, minimum order size and rate card).