EFG
Addendum to
IAB Standard Terms v3.0
Amendment of IAB Standard Terms
1.
Section “III. PAYMENT AND LIABILITY; (c) Payment Liability” is hereby deleted and replaced by the following:
- The following is hereby inserted in place of the above deleted section: “Agency agrees to be solely liable for payments owed by Advertiser to Media Company, regardless of whether proceeds have been cleared from Advertiser to Agency for Ads placed in accordance with the IO. All sums owed to Media Company by Advertiser under the IO shall be due and payable by Agency in accordance with the terms of the IAB Standard Terms or the IO (as applicable). Agency shall make every reasonable effort to collect sufficient funds from the Advertiser to make payments pursuant to the IO, in advance.”
2.
Section “IX. AD MATERIALS” is amended to add the following subsection immediately after the end of subsection (g):
- “h. Warranty, Representation and Undertaking. Advertiser, and Agency for an on behalf of Advertiser, warrants represents and undertakes to EFG that the Ad and Advertising Materials and any content linked to or from the Ad and Advertising Materials; (i) will not infringe the rights, including but not limited to intellectual property rights and privacy rights, of any third party; (ii) will not link to products or services that infringe the rights of any third party (including but not limited to unlawful and counterfeit items); (iii) will be up-to-date and accurate; (iv) will not be misleading, deceptive, involve any misrepresentation, or imply or represent that any party has approval or sponsorship of another party that it does not have; (v) will not be defamatory; (vi) will not contain any virus, trojan horse, malicious code or any other damaging component(s); (vii) will not contain any information or content that is illegal, contrary to any industry code, indecent, obscene, threatening, harassing, discriminatory or in breach of confidentiality; and (viii) will not breach any applicable laws or advertising regulations (including self-regulation) including those laws of the country(ies) in which the Media Company Properties and Network Properties operate in. Advertiser, and Agency for an on behalf of Advertiser, further warrant represent and undertake to EFG that it has obtained all necessary rights, consents, permissions, licences or clearances in relation to the publication of the Advertising Materials, it has complied with all guidance of relevant regulatory bodies and EFG is not required to hold any rights, consents, permissions, licences or clearances in relation to the publication of the Advertising Materials.
3.
Section “X. INDEMNIFICATION; (a) By Media Company” is hereby deleted in its entirety and replaced by the following:
- “By Media Company. Media Company will defend, indemnify, and hold harmless Agency and its Affiliates and Representatives from damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgement or proceeding (collectively, “Claims”) brought by a Third Party resulting from (i) Media Company’s breach of Section XII (Non-Disclosure, Data Usage and Ownership, Privacy and Laws); (ii) Media Company’s breach of Section XIV(a) (Necessary Rights); and (iii) Media Company’s proven negligence or willful misconduct. Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from (1) Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives, or (2) a user viewing an Ad outside of the targeting set forth on the IO, which viewing is not directly attributable to Media Company’s serving such Ad in breach of such targeting.
The following new subsections are hereby added to the end of Section “X. INDEMNIFICATION; (b) By Advertiser” as follows:
- “or (iv) any alleged or actual breach by Advertiser of any Advertiser obligations under these Terms and/or the IO including but not limited to Section IX (h), (v) Advertiser’s breach of Section XII (Non-Disclosure, Data Usage and Ownership, Privacy and Laws), and (vi) the negligence or willful misconduct of Advertiser.
4.
Section “X. INDEMNIFICATION; (c) By Agency” is hereby deleted in its entirety and replaced by the following:
- By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms, the EFG Addendum and each IO, and that all of Agency’s actions related to these Terms, the EFG Addendum and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged or actual breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached any of the Agency obligations under these Terms and/or the IO including but not limited to Section IX (h); (iii) Claims brought by a Third Party alleging that Agency has breached Section XII (Non-Disclosure, Data Usage and Ownership, Privacy and Laws); and (iv) Agency’s negligence or willful misconduct.
5.
The following section is hereby added to the end of Section “XI LIMITATION OF LIABILITY”:
- Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section X, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event shall each party’s liability to the other party exceed the amount paid by Agency or Advertiser to Media Company under the IO to which the claim relates. It is explicitly understood by Agency and Advertiser that the obligations in this agreement, including but not limited to, any and all indemnities and warranties set forth herein, are from Media Company only and are not offered on behalf of the Kingdom of Saudi Arabia’s Public Investment Fund, Savvy Games Group or any Savvy Games Group subsidiary other than Media Company.
6.
The subsection (c) of Section XII “NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS” is amended to add the following definitions immediately after the end of definition (vii):
- “EU SCCs” means the contractual clauses annexed to the European Commission’s Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (“EU SCCs”), Module One (Controller to Controller);
- “Personal Data” means any information relating to and identified or identifiable natural person, including “personally identifiable information” and “personal information”;
- “UK SCCs” means standard data protection clauses adopted pursuant to Article 46(2)(c) or (d) of the UK GDPR (specifically, the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses)
7.
Section XII “NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS” (d)(i) “Use of Collected Data” is hereby deleted in its entirety and replaced by the following:
- Use of Collected Data. i. Unless otherwise authorized by Media Company, Advertiser will not: (A) use Collected Data for Repurposing; (B) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party except as set forth in Section XII(d)(iii);
8.
Section XII “NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS” is amended to add the following subsection immediately after the end of subsection (h):
- For the transfer of Personal Data relating to individuals in the European Economic Area (“EEA”) or the UK by Media Company as data exporter to the Agency located in a country outside the EEA or the UK not declared as providing adequate level of data protection by the European Commission (Article 45(3) GDPR), Parties agree to enter into Standard Contractual Clauses, which are incorporated by reference and form part of this Addendum as follows:
- (I) In relation to Personal Data about individuals in the EEA, the EU SCCs will apply completed as follows:
A. Module One of the EU SCCs applies;
B. Clause 7, the optional docking clause, applies;
C. Clause 17, option 1 applies, and the EU SCCs will be governed by the laws of the State Commissioner for Data Protection and Freedom of Information North Rhine-Westphalia;
D. in Clause 18(b), disputes shall be resolved before the courts of North Rhine-Westphalia , Germany
E. Annex I of the EU SCCs shall be deemed completed with the information set out in Schedule 1 to this Addendum; and
F. Annex II of the EU SCCs shall be deemed completed with the information set out in Schedule 2 to this Addendum. - (II) In relation to Personal Data relating to individuals in the UK, the UK SCCs will apply completed as follows:
A. The EU SCCs, completed as set out above in this clause 11 of this Addendum shall apply to transfers of such Personal Data, subject to sub-clause (II)(B) below; and
B. The UK Addendum shall be deemed executed between EFG and the Hotel and the EU SCCs shall be deemed amended as specified by the UK Addendum in respect of the transfer of such Personal Data.
- (I) In relation to Personal Data about individuals in the EEA, the EU SCCs will apply completed as follows:
9.
The blank spaces in Section “XIV(d) of the IAB Standard Terms shall be read as “England and Wales” and “the courts of London, England” respectively.