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THESE STANDARD TERMS AND CONDITIONS (these “Standard Terms”), and the corresponding attached orders (the “Orders”) constitute the entire agreement (these Standard Terms and any applicable Order collectively, the “Agreement”) by and between DIGIMED, LLC, a Delaware limited liability company (“Digimed”), and the publisher set forth on the applicable Order (“Publisher”) related to real-time bidding services and/or Cost Per Thousand Billing. Digimed and Publisher are sometimes referred to individually as a “Party” and collectively as the “Parties.

  1. Terms – The following terms shall have the meaning assigned to such terms set forth below:
    • Ads” shall mean any advertising content or materials, including video, text, graphical and other advertisements, advertorials, or sponsorships. Ads shall include any advertisements or sponsorships served on the Site or in connection with any of the Site’s URLs or redirected URLs anywhere in the world, including advertisements from ad buyers or sold through third-party advertising networks, sponsorships, affiliate programs, and any other revenue-generating or value-creating placements on the Site.
    • Advertisers” means a person or entity who buys Inventory for placement of Ads.
    • Inventory” means offered advertising placement.
    • Platform” means the real-time bidding platform operated by Digimed that allows publishers who have Inventory on their Sites to sell, and Advertisers who want to buy the Inventory to place Ads, to connect.
    • Services” means the services provided by Digimed related to the Real-Time Bidding Services or CPM Model, as applicable.
    • Sites” means online digital properties including websites, mobile websites, digital platforms, and/or applications regardless of whether the Site is accessed via computer, mobile device, smart television or other Internet-connected device. “Site” means all of the Publisher’s online digital properties unless Publisher and Digimed have agreed in writing (including via email) to limit the Sites.
    • Taxes” means all federal, state, local, foreign, and other net income, gross income, gross receipts, sales, purchase, use, ad valorem, value-added, goods and services, harmonized sales, transfer, franchise, profits, withholding, payroll, excise, stamp, real or personal property, customs, duties or other taxes, fees, levies, assessments or charges of any kind whatsoever, including any related penalties and interest, imposed by any federal, territorial, state, local, or foreign government or any agency or political subdivision of any such government.


  1. Statistics; Adjustments. If there is a dispute regarding the number of Ads served on the Site, then the calculation of such amount by Digimed will control. Publisher understands that Digimed may make adjustments after a calendar month to account for any amounts refunded to Advertisers, any amounts not paid by Advertisers including returned payments, or discrepancies due to violations of Section 5.B. Any such adjustment will be made on future payments to Publisher, and if no future payment is owed, Publisher will reimburse Digimed for such amounts.


  1. Site Functionality. The Site shall have and maintain industry-standard functionality during the term of the applicable Order at least sufficient to support the Interactive Advertising Bureau’s (“IAB”) standard advertising units, video units, rich media units, and custom editorial and promotional modules, as such may be mutually modified by the Parties. Publisher acknowledges that Digimed has no responsibility to review the content of the Site. The Site shall not contain, be associated with, or contain links to, content promoting illegal activity (for example, underage drinking, terrorism, money laundering), the use of illegal drugs, the illegal use of legal drugs or illegal substances; pornography or obscenity; racism, hate speech, “spam,” mail fraud, pyramid schemes, or investment opportunities or advice not permitted by law; or content that is libelous, defamatory, contrary to public policy, inappropriate, offensive, violent in nature, or otherwise unlawful. The publisher shall maintain the Site in accordance with the highest industry standards. Publisher agrees that the Site will be accessible 99.99% of the time during each month and that a user of the Site will be able to view any Ads placed on the Site immediately upon the page being loaded without the user having to scroll up or down on such page. The publisher is solely responsible for the ownership, development, maintenance, and operation of the Site and any content, including video content provided within or displayed on the Site (the “Content”).


  1. Business Process.
    1. Digimed shall be responsible for all contracting, billing and collections with Advertisers; provided, however, that Digimed shall not be obligated or required to bring any lawsuit or engage any collection services to recover advertising fees. All relationships with Advertisers belong to Digimed. Digimed does not represent, warrant or guarantee that any payment will be made by any Advertiser, and Digimed shall not be liable to Publisher, in any way, for any non-payment by any Advertiser. Publisher agrees that not all Inventory provided by Publisher will be filled with an Ad from Digimed, and therefore there is no guarantee that there will be revenue generated for Inventory provided by Publisher. Publisher shall not alter, modify, or adapt Ads creative elements or links in any manner, or embed hidden or keywords without Digimed’s prior written consent. Publisher agrees to display each of the Ads without modification only on the Site and in the manner required by Digimed. The publisher agrees to place all Ads from the winning Advertiser on the Site. Publisher will provide such information in Publisher’s control as reasonably required by Digimed from time to time for traffic tracking and fraud detection. The publisher will provide this information at the time a request is sent to Digimed.
    2. If there is a dispute about whether any traffic is invalid or fraudulent, the determination of a third-party invalid traffic verification vendor selected by Digimed will control and the Parties agree to be bound by such determination.


  1. Term; Termination; Effect of Termination. The Agreement shall commence on the Effective Date and, unless earlier terminated as set forth below, continue for a period of one (1) year (the “Initial Term”). Thereafter, the Agreement shall automatically renew for consecutive one (1) year terms (each, a “Renewal Term”), unless either Party delivers written notice of such termination at least thirty (30) days prior to such Renewal Term. As used herein, (“Term”) means the Initial Term plus any Renewal Term(s). Digimed may suspend Publisher’s access to and use of the Platform, if Digimed determines, in its sole reasonable discretion that Publisher’s continued use of the Platform is likely to violate law, or damage or cause imminent harm to the Platform, Digimed, its customers, or other publishers. Digimed will use commercially reasonable efforts to provide Publisher with notice prior to a suspension, but in any event will notify Publisher as soon as practicable thereafter. If the event giving rise to the suspension is not cured within five (5) days, Digimed will have the right to terminate the Agreement upon written notice. Either Party may terminate the Agreement if the other Party fails to cure any breach of a material obligation under the Agreement within thirty (30) days after receipt of written notice describing the breach in reasonable detail. In addition, during any Renewal Term, either Party may terminate the Agreement for convenience upon thirty (30) days’ prior written notice to the other Party. Upon expiration or termination of the Agreement for any reason: (i) all licenses granted herein shall immediately terminate, (ii) Publisher will cease all use of the Platform, and (iii) all payment obligations accrued but unpaid as of the effective date of termination will survive. Termination of the Agreement by any Party will not act as a waiver of any breach of the Agreement and will not act as a release of liability under the Agreement.


  1. IAB Standard Terms and Conditions; Conflicts. The Parties acknowledge and agree the Interactive Advertising Bureau’s Standard Terms and Conditions for Media Buys of One Year or Less v. 3.0 (the “IAB Terms”) are incorporated herein by reference and shall apply to each Order contemplated under these Standard Terms unless otherwise indicated in an Order. In the event of a conflict between the terms and conditions of the IAB Terms and the Agreement, the Agreement shall control. In the event of a conflict between the terms and conditions of any Order and these Standard Terms, an Order shall control.


  1. Data Use.
    1. The following terms shall have the meaning assigned to such terms set forth below:
      • Ad Data” means: (i) all data Digimed submits to Publisher in a bid for a particular unit of Inventory, whether through the Platform or otherwise, (ii) all data Digimed collects following the purchase of a particular impression or unit of Ad inventory (i.e. post bid-win) using its own technology or the Platform and independent of any Syncing Method with Publisher or Publisher’s publishers or agents, excluding Bid Request Data, and (iii) all information related to Advertisers.
      • Bid Request Data” means any information passed to Digimed via the Platform prior to the purchase of a particular impression or unit of Inventory (i.e. prior to the loading of Digimed’s ad tag), including both audience related (e.g. gender) information, non-audience-related information (e.g. contextual, channel), and user specific information including any device identifier or enabled geo-location data.
      • Site Data” means data obtained by Digimed in connection with the Agreement that identifies or allows identification of Publisher, its URL, services, products, brand, Content, context, or users.
      • Syncing Data” means any information obtained by Digimed as a result of cookie synchronization with Publisher (or its publishers or agents in connection with the Agreement) or via any other method of user, segment, or audience synchronization, mapping or matching with Publisher (or its publishers or agents in connection with the Agreement) (each, a “Syncing Method”).
    2. As between the Parties, Publisher owns all right, title and interest in and to the Site Data. As between the Parties, Digimed owns all information other than the Site Data, including any data generated, collected or provided by the Platform, the Bid Request Data, the Ad Data, and the Syncing Data (collectively, the “Digimed Data”), including personal identifiable information (“PII”).
    3. Publisher may not use, sell, or otherwise disclose the Digimed Data except that Publisher shall have the right to: (i) use Syncing Data for the sole purpose of matching user or audience identifiers used by Digimed with user or audience identifiers used by Publisher. For clarity, Publisher agrees that it will not store or retain log files or other records that relate to Syncing Data, and (ii) use and disclose Bid Request Data and Ad Data to perform its obligations under the Agreement, for inventory measurement, forecasting, scoring and ranking purposes, or for detection of click fraud or other invalid clicks.


  1. Digimed shall have the right to use and disclose Site Data: (i) to operate Platform, (ii) to perform its obligations under the Agreement, (iii) for reporting and analytical purposes, and (iv) as otherwise permitted with Publisher’s prior written consent. Publisher understands and agrees that data may be collected and/or Ads may be served on the Site using behavioral advertising tools and Publisher shall advise users of such uses in its privacy policy (which privacy policy shall contain provisions no less encompassing than as generally recognized in the internet industry). Publisher acknowledges, for the avoidance of doubt, that Digimed may use non-personally identifiable behavioral data concerning individual users of the Site (or more specific pages thereof) to help target Ads to those users. Publisher hereby grants to Digimed a non-exclusive, assignable, non-terminable, non-cancelable license to use all Site Data, other than PII, for the purposes set forth in the Agreement. Publisher acknowledges that Digimed does not collect or wish to receive any PII from Publisher’s end users and Publisher agrees that Publisher will not pass on or provide any such PII of Publisher’s end users to Digimed. At all times during the Term, Publisher will: (x) maintain and contractually require its media Publishers to ensure that on the Site and each website where information is being collected by pixel, beacon or similar technology for retargeting purposes, a privacy policy is conspicuously provided that complies with these Standard Terms and applicable law and, at a minimum, includes disclosures of the type(s) of data collected from users by the Site, the Site’s use and disclosure of any such data, and the types of technologies used by the Site to collect such data (e.g., cookies, pixels or other similar technologies); (y) provide a brief explanation within the Site’s privacy policy explaining that Publisher works with unaffiliated third parties which Publisher allows to target and serve advertisements, and use cookies on the Site to collect PII and non-personally identifiable data for use in connection with the delivery of such advertisements; and (z) include a conspicuous link within the Site’s privacy policy to allow users to opt-out of receiving targeted advertisements from third parties which are parties to the Network Advertising Initiative (“NAI”), by using the opt-out tool made available by NAI, or by offering an opt-out opportunity that is comparable to the NAI mode. Each Party agrees to comply with the terms of its own posted privacy policy(ies). Neither Party will pass or provide to the other Party any personal information that would allow the identification of a particular end user. To the extent that PII, personal information, or any other data is collected by or on behalf of Publisher or Advertisers from end users that click on or otherwise interact with an Ad, Publisher represents and warrants that all appropriate consents and waivers have been or will be obtained from such end user.


  1. Representations and Warranties.
    1. Each Party represents and warrants to the other that: (i) it has the full power and authority to enter into these Standard Terms and each Order and fully perform all of its obligations hereunder and thereunder without violating the legal or equitable rights of any third party; (ii) it has all rights necessary to enter into these Standard Terms and each Order and to grant the rights hereunder; and (iii) it will comply with all applicable laws, rules and regulations in performing its respective obligations and exercising its rights hereunder, including consumer protection laws and privacy laws.
    2. Publisher represents, warrants and covenants that the Site, Content and the technology used by Publisher in connection with the Site (i) are owned or validly licensed for use by Publisher or are in the public domain, (ii) do not constitute defamation, libel or obscenity, (iii) do not violate applicable U.S. laws, rules or regulations, (iv) do not infringe or violate any U.S. copyright, patent, trademark or other intellectual property right, or otherwise violate or breach any duty toward, or rights of, any person or entity, including without limitation rights of privacy and publicity, (v) do not result in any consumer fraud, product liability, breach of contract to which Publisher is a party or cause injury to any third party, (vi) are free of any software virus, time bomb, worm, virus macro, Trojan horse or other such harmful or malicious code, files, scripts or agents into the Platform (or onto any Inventory made available through the Platform or Ads placed through the Platform) designed to permit unauthorized access, to disable, erase or otherwise harm or maliciously alter software, hardware or data, and (vii) are not subject to The Children’s Online Privacy Protection Act of 1998. Publisher represents, warrants and covenants that: (i) neither the Agreement nor the performance of or exercise of rights under the Agreement will violate, conflict with, or result in the breach of any term, condition, or provision of any agreement or legal obligation to which it is a party or by which it may be bound; (ii) Publisher is authorized to serve Ads to its users, will comply with all laws regarding serving of Ads to users, and will ensure that each user has appropriately and legally consented to and authorized having Ads served to such user; (iii) Publisher agrees to identify if any Sites (or media contained on those Sites) making Inventory available through Platform that is directed to users under thirteen (13) years of age or collects information from users actually known to be under thirteen (13) years of age; and (iv) Publisher will comply with all applicable laws.


  1. Indemnity. Each Party (“Indemnifying Party”) agrees to indemnify and hold harmless the other Party, its parents, affiliates, subsidiaries and its and their officers, directors, consultants and/or employees (each, an “Indemnified Party”) from and against any cost, loss or expense (including reasonable attorney’s fees) resulting from any claims by third parties for loss, damage or injury caused by any breach of a representation, warranty or covenant of the Agreement by the Indemnifying Party; provided, however, that the Indemnified Party provides the Indemnifying Party with:
    • prompt written Notice of such claim or action; and
    • proper and full information and reasonable assistance to defend and/or settle any such claim or action, at the Indemnifying Party’s expense (including reasonable attorney’s fees); provided, however, there shall be no obligation by the Indemnifying Party to indemnify the Indemnified Party where such claims result from the gross negligence or knowing and willful misconduct of the Indemnified Party. The Indemnified Party shall have the right, at its expense, to retain legal counsel and/or to participate in the defense of the claim; provided that the Indemnifying Party shall not settle any such claim or action without the Indemnified Party’s prior written approval (which, the Parties agree, is not to be unreasonably withheld).


  1. Limitation of Liability. Digimed shall NOT be liable to PUBLISHER or ANY INDEMNIFIED PARTY for any incidental, consequential, special, exemplary or punitive damages, lost or imputed profits or royalties, or any other indirect damages arising out of the Agreement or its termination, however caused and whether for breach of warranty or any obligation arising therefrom or otherwise, whether liability is asserted in contract, tort (including negligence and strict product liability) or under any theory of liability, and irrespective of whether Digimed was advised, had reason to know or knew of the possibility thereof. Digimed’s maximum aggregate liability to Publisher or any indemnified party arising out of the agreement, whether the cause of action arises in contract, tort or otherwise, shall not exceed $25,000. The above limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.


  1. Marketing Activities. Digimed may promote and market the Site, Publisher and editorial content in whatever form that Publisher creates for display on the Site or elsewhere in marketing and sales materials and for distribution and display on Digimed’s and Digimed affiliate’s network of websites and applications free of charge and where and when appropriate, in Digimed’s reasonable discretion. Publisher will also implement and/or assist Digimed in implementing features and requirements on the Site which Digimed may make available throughout the Term of the Agreement. The promotion or marketing by Publisher of its relationship with Digimed or any Digimed affiliate shall require the prior written consent of Digimed.


  1. Cooperation. Publisher shall cooperate with Digimed as requested in connection with the rendering of the Services, including establishing placement procedures and providing all technical and access assistance in the placement, configuration and installation of Ads, and data collection.


  1. Independent Contractor Status. The relationship between the Parties is that of independent contractors. The Agreement will not be deemed to create an employment relationship, partnership, joint venture, or other relationship (other than that of independent contractors) between the Parties. Digimed shall not owe any fiduciary or, except to the extent otherwise provided herein, other duties to Publisher.


  1. Proprietary Rights and Confidential Information.
    1. Publisher hereby grants to Digimed a non-exclusive license (without the right to sublicense) to use, reproduce and display Publisher’s name, logo, service marks, trademarks and related brand features (“Marks”) solely in connection with Digimed’s performance of its obligations hereunder, for example in the Platform user interface (“UI”). Digimed’s use of Publisher’s Marks will be in compliance with any written usage guidelines provided in advance to Digimed by Publisher. All uses of Publisher’s Marks will inure solely to the benefit of Publisher, and Digimed’s rights in and to Publisher’s Marks are limited solely to those rights granted herein.
    2. As between the Parties, Digimed shall own and retain all right, title and interest in and to Digimed’s intellectual property, the Platform, RTB Guidelines and Digimed’s Confidential Information, together with all intellectual property rights therein and thereto. As between the Parties, Publisher shall own and retain all right, title and interest in and to the Sites, Publisher’s Marks and Publisher’s Confidential Information, together with all intellectual property rights therein and thereto. Publisher may, in its sole discretion, provide Digimedwith suggestions or other feedback regarding the Platform, which Digimed may freely use to improve or enhance the Platform, without payment of any royalty or any duty to account to Publisher.
    3. The term “Confidential Information” shall have the same meaning ascribed to it in the IAB Terms. Without limiting the foregoing, the Parties agree that the terms and conditions of these Standard Terms, any applicable Order, and the terms and conditions of any agreement with an Advertiser, shall be considered Confidential Information of Digimed.
    4. When a Party (the “Receiving Party”) receives or learns of Confidential Information of the other Party (the “Disclosing Party”) the Receiving Party shall not at any time during the Term of the Agreement and for a period of five (5) years after the end of the Term of the Agreement: (i) sell, license, or transfer any of the Disclosing Party’s Confidential Information; (ii) disclose or otherwise make available to any person or entity any of the Disclosing Party’s Confidential Information (other than to those of the Receiving Party’s employees who are bound by use and confidentiality restrictions which are no less protective of us than those contained in these Standard Terms and who have a legitimate need to know such Confidential Information in connection with the Agreement); or (iii) access, use, reproduce, or copy any of the Disclosing Party’s Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the Receiving Party and in accordance with the Agreement. Each Party agrees to take all reasonable measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, the Disclosing Party’s Confidential Information.
    5. If required by law or any governing authority to disclose the Disclosing Party’s Confidential Information, the Receiving Party may do so provided that: (i) it gives the Disclosing Party prompt written Notice of such requirement prior to such disclosure if such notice is permitted by law; and (ii) any such disclosure is limited to the minimum extent necessary to comply with the legal requirement.
    6. Publisher may not issue any press release or other public statement regarding the terms or existence of the Agreement without Digimed’s prior written consent. Notwithstanding anything to the contrary herein, Publisher agrees that Digimed may, in connection with any marketing materials and presentations prepared by Digimed, identify the Site, identify Publisher as a Publisher, and describe the Services provided under the Agreement.
    7. The Disclosing Party retains title to and ownership of its Confidential Information at all times. No rights or obligations other than those expressly recited herein are implied by the Agreement. Nothing in the Agreement will be deemed to grant by Digimed license or other interest in the Confidential Information of Digimed, including patent rights, copyrights, rights in trademarks, or other proprietary rights of Digimed, except for Publisher’s right to use the Platform as set forth herein.


  1. Non-Solicitation. Publisher agrees that during the Term and for a period of two (2) years thereafter, Publisher will not directly or indirectly: (i) induce, solicit, or advise any Advertiser to withdraw, curtail, or cancel its business or business activities with Digimed, any affiliate of Digimed or any customer of Digimed; (ii) disrupt, damage, or interfere with the relationship of Advertiser and Digimed, any affiliate of Digimed or any customer of Digimed; (iii) contact, or engage in solicitation, sales or business development efforts with, any Advertiser, intended or for the purpose of obtaining, selling, licensing, or providing new or expanded business, relationships, products, services or projects from any such Advertiser; and (iv) sell any Ad opportunities to any Advertiser, or provide an opportunity to any Advertiser to purchase Ads, whether on the Site or otherwise.


  1. Force Majeure. No delay or failure by a Party in the performance of any obligation of the Agreement shall be deemed a breach of the Agreement nor create a liability, if the same shall arise by reason of any cause beyond the reasonable control of the affected Party, including fire, flood, accident, earthquakes, telecommunication line failures, electrical outages, civil unrest, strikes, pandemics, acts of terror, acts of God, acts of government, or labor disputes provided that the Party so affected shall use reasonably commercial efforts to avoid or remove such cause of nonperformance and continue performance as soon as practicable. Any failure (other than due to third party electrical or third party telecommunication line fails) of the Site shall not be deemed to be outside of Publisher’s control. In the event such cause exceeds thirty (30) days, either Party may terminate these Standard Terms pursuant to the terms and conditions of Section 6.
  2. Notices required under the Agreement (each a “Notice”) shall be in writing and shall be delivered personally, by certified or registered mail or through overnight courier. Notice shall be deemed given when so delivered personally or, if mailed by certified or registered mail, three (3) business days after the date of deposit in the United States mail, or, if delivered by overnight courier, one (1) business day after the date of deposit with a reputable overnight delivery service. Notices shall be sent to the Parties at the addresses set forth in the applicable Order, or such other address as shall have been specified to the other Party by written Notice.
  3. Miscellaneous. The word “including” or any derivation thereof, shall mean “including, without limitation.” These Standard Terms, together with any applicable Order, and the IAB Terms, constitute the entire agreement between the Parties and supersedes all prior written or oral understandings with respect thereto. Digimed hereby objects to and rejects any term in Publisher’s quote, acknowledgement, purchase order or other Publisher document that is different than or in addition to the terms in these Standard Terms, and such term will not constitute any part of the Agreement between Digimed and Publisher. Any attachment is incorporated into these Terms and the Agreement by reference. These Standard Terms and any Order may not be amended or modified except in writing signed by both Parties and may be executed in counterparts and with facsimile or electronic signatures. A waiver of performance or breach of any provision of these Standard Terms and any applicable shall not constitute a waiver of any subsequent performance or breach of the same or any other provision. If any provision of the Agreement shall be declared void, illegal or unenforceable, the remainder of the Agreement shall be valid and enforceable to the extent permitted by law. Sections 2, 6 through and including 12, and 15 through and including 20 shall survive the termination or expiration of the Agreement. The Agreement and any disputes pertaining to it will be governed and construed in accordance with laws of the State of California and the Parties submit to the exclusive jurisdiction of the state and federal courts located in Los Angeles County, California for resolutions of all claims, difference and disputes which the Parties may have regarding these Standard Terms and any Order. Publisher may not assign these Standard Terms or any Order without Digimed’s prior written approval.


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