Index Marketplaces Terms of Use

1.1. Application. By using the Marketplace Platform, you agree to abide by: (i) these Terms of Use; and (ii) any policies, guidelines or reasonable instructions provided to you by Index (collectively, these Terms).

1.2. Marketplaces Effective Date. These Terms take effect when you begin using Index’s Marketplace Platform (Marketplaces Effective Date).

1.3. Opt-Out. YOU CAN TURN OFF, OR OPT-OUT OF USING, INDEX MARKETPLACES AT ANY TIME THROUGH THE INDEX UI. NO TRANSACTIONS FOR YOUR AD INVENTORY WILL OCCUR THROUGH INDEX MARKETPLACES IF YOU OPT-OUT. YOU MAY ALSO OPT-OUT OF A SPECIFIC MARKETPLACE THROUGH THE UI.

2.1. Ad Inventory means digital media inventory, across one or more Publisher Properties, made available by you for sale through the Marketplace Platform;

2.2. Ad Request means notification by you of the availability of Ad Inventory for sale to Buyers through the Marketplace Platform;

2.3. Bid Request means the notification by Index to Buyers of the availability of Ad Inventory for sale via the Marketplace Platform in accordance with a particular Ad Request; Bid(s) means a response to a Bid Request, submitted to the Marketplace Platform by a Buyer, for the applicable Ad Inventory;

2.4. Buyer(s) means all persons (including clients, agencies, advertisers, groups of advertisers and/or demand-side platforms) that submit Bids to purchase Ad Inventory through the Marketplace Platform;

2.5. Exchange means Index’s programmatic advertising exchange platform, including all related technology, like the Marketplace Platform, software, tools, and infrastructure that allows Buyers to purchase digital advertising inventory, including your Ad Inventory;

2.6. Index Marketplaces or the Marketplace Platform means Index’s marketplaces platform including all related technology, software, tools, and infrastructure;

2.7. Index Revenue Share means the amount Index is permitted to retain from a transaction through the Exchange pursuant to the MSA between you and Index;

2.8. Marketplace means a business a Marketplace Owner may create atop Index’s Ad Inventory supply footprint in order to bring incremental, customized demand to Index’s publisher partners;

2.9. Marketplace Media Spend means the amount a Buyer spends for Ad Inventory purchased through the Marketplace Platform;

2.10. Marketplace Owner means a third-party entity who, through a Marketplace Owner Agreement, establishes a Marketplace on Index’s Exchange;

2.11. Marketplace Owner Agreement means any agreement(s) in place between Index and Marketplace Owners(s) to establish a Marketplace on the Exchange;

2.12. Marketplace Owner Fee means the Marketplace Owner’s fee as a portion of the Marketplace Total Fee;

2.13. Marketplace Total Fee means the total fees taken within the Marketplace Platform which may include, without limitation and as applicable: Marketplace Owner Fee, and/or Vendor Fee(s);

2.14. MSA means a pre-existing master services agreement between you and Index providing for an integration between the Publisher Properties and the Exchange including any data protection terms even if such terms are expressed in separate but related data protection agreement (DPA) between the Parties;

2.15. Parties means you and Index;

2.16. Publisher Payment means the Marketplace Media Spend less the Marketplace Total Fee, the Index Revenue Share, and the any other fees or payments authorized by you (if applicable) which Index will pay to you pursuant to these Terms;

2.17. Publisher Properties means websites, mobile sites, applications, or other digital advertising inventory owned and/or operated by you, or for which you have authority to sell Ad Inventory or otherwise use the Marketplace Services (as defined in Section 3.1 below);

2.18. Supply Partner(s) means the owner and operator of a platform to whom you granted all necessary rights and authority to sell your Ad Inventory to DSPs through a connection between Index’s Exchange and the Supply Partner’s platform (for example, without limitation, Google’s ‘Open Bidding,’ or Amazon’s ‘Transparent Ad Marketplace’);

2.19. UI means the user interface provided by Index;

2.20 Vendor(s) means a third-party who provides data or other services (i.e. curation) to the Exchange including without limitation Index Marketplaces;

2.21 Vendor Agreement(s) means any agreement(s) in place between Index and Vendor(s) related to data or services that may be used in a Marketplace;

2.22 Vendor Fee(s) means the Vendor’s fee as a portion of the Marketplace Total Fee determined in the Vendor Agreement(s) but which may vary and will be reflected in the UI;

2.23. We, or Index means Index Exchange Inc.; and

2.24. You, your, Company, or Publisher means the individual or entity using the Marketplace Platform (and/or any individual, agent, employee, representative, network, parent, subsidiary, affiliate, successor, related entities, assigns, or all other individuals or entities acting on your behalf), at your direction, under your control, or under the direction or control of the same individual or entity who controls you.

3.1. Marketplace Platform. Subject to these Terms, Index hereby: (i) grants you indirect access to the Marketplace Platform, through the Exchange, such that you may submit your Ad Inventory for sale to interested Buyers, including through Supply Partners; (ii) agrees to provide routine reporting regarding transactions that occur through the Marketplace Platform; and (iii) agrees to provide you with tools in the UI that you can use to reflect your preferences within the Marketplace Platform including, without limitation, floor prices for inventory transacted through the Marketplace Platform (collectively, the Marketplace Services). Index may stop, decline or limit your access to the Marketplace Services at any time. You acknowledge and agree that: (i) if you choose to monetize Ad Inventory through Supply Partner(s) within Index Marketplaces, Supply Partner fees may apply in addition to any amounts outlined in these Terms; and (ii) custom Index Marketplaces offered by some Marketplace Owners may require additional terms between Index, the Marketplace Owner and/or you which may be separate from these Terms.

3.2. Publisher Properties. Subject to the operation of the tools described in Section 3.1 above and these Terms, all Ad Requests Publisher sends to Index may be eligible to transact through the Marketplace Platform. Index may also block, reject or refuse to serve advertisements to Publisher Properties in its sole discretion. You acknowledge and agree that the quality control settings for your Ad Inventory in the Exchange will also apply in the Marketplace Platform; Index may offer additional tools such that you may further customize your quality control settings for Index Marketplaces.

3.3. Vendor(s). Index will enter into Vendor Agreement(s) with Vendor(s). The Vendor Fee(s) may vary but will be reflected for the party using the data or services provided by such Vendor in its current state the UI. You may also integrate your own data (i.e. an identifier, audience, or segment that you have all necessary permissions, consents and/or authorizations to use in this manner) for use through the Marketplace Platform. You may choose whether to engage with Vendors or to integrate your data in the Marketplace Platform to infuse your Ad Requests with data or services from these sources. You acknowledge that Vendors may contribute data or services to transactions on the Exchange that are outside Index Marketplaces; these Terms do not apply to such transactions.

3.4. Acknowledgements. You acknowledge and agree that: (i) Index’s ability to provide the Marketplace Services depends upon you having a pre-existing MSA; (ii) except when you specify, all bids on the Marketplace Platform compete in net and Bids in Index Marketplaces only win an auction if they out-perform all other demand according to the criteria you select (including open marketplace, private marketplace and inventory packages demand); (iii) as part of Index’s commitment to transparency, Index offers reporting (or a ‘receipt’) to all parties to a transaction for Ad Inventory (presently called “Client Audit Logs”); Index may offer such reporting to the parties involved in a transaction for Ad Inventory through the Marketplace Platform (including to the applicable Buyer(s), Marketplace Owner and/or you); (iv) Marketplace Owners may permit different levels of disclosure for their Marketplace(s) within the Marketplace Platform; the reporting Index provides may vary to account for these differences; and (v) details about the Ad Inventory you offer may be outlined in the UI or reporting to allow Buyer(s) and/or Marketplace Owners to plan their purchases.

3.5. Updates. Index will provide updates (including general bug fixes and minor enhancements) and upgrades (including enhancements and major functionality changes) for the Marketplace Platform upon the implementation of such updates and upgrades. Index may update, suspend, or cancel all or part of the Marketplace Services at any time and in its sole discretion. Index shall use commercially reasonable efforts to provide advance notice of any such suspension or cancellation.

4.1. Payment Terms. Index will pay to you, as a minimum, the Publisher Payment collected by Index for sales of your Ad Inventory through the Marketplace Platform. Index will remit the portions of the Marketplace Total Fee including any Marketplace Owner Fee, Vendor Fee(s), or other applicable fees, to the applicable party while retaining the Index Revenue Share. For clarity, Index uses a sequential model to remove applicable fees by extracting the Marketplace Total Fee from the Marketplace Media Spend first, before extracting Index’s Revenue Share together with any other applicable fees you authorize.

4.2. Adjustments to Amounts Payable. The Parties intend that Index only remit amounts corresponding to amounts of Marketplace Media Spend (less the Marketplace Total Fee and Index’s Revenue Share) it has actually collected from Buyers for Ad Inventory sold on the Publisher Properties through the Marketplace Platform pursuant to these Terms. In the event that Index has remitted the Publisher Payment to you but has not received the corresponding amounts of Marketplace Media Spend from the Buyer (because of, for example, invalid or fraudulent traffic, discrepancies in billing numbers and/or uncollected accounts), Index may, as applicable: (i) withhold such amounts from the Publisher Payment until they are collected; (ii) set off such amounts against future Publisher Payment or other amounts payable by Index to you; or (iii) require you to pay (and you will pay within thirty (30) days of receiving notice) an amount equal to any amounts remitted to you but for which the corresponding Marketplace Media Spend has not actually been collected. Index will use commercially reasonable efforts to collect all Marketplace Media Spend due.

4.3. Invoicing. You have no obligation to issue invoices to Index. Index will pay you the Publisher Payment owing, subject to the adjustments, for the applicable month, based upon Index’s records and measurements and in accordance with the payment timeline set out in the MSA.

These Terms apply beginning on the Marketplaces Effective Date and continue, without limit, until terminated (Term). These Terms may be terminated: (a) by either Party, at any time (notice to be provided in accordance with Section 7.6 below); or (b) immediately if the MSA is terminated. Notwithstanding anything to the contrary, in the event that you endanger the security or integrity of the Marketplace Platform or the Marketplace Services, Index may suspend your access to the Marketplace Platform and/or Marketplace Services in whole or in part and in Index’s absolute discretion.

6.1. Application of the MSA. The Services set out in the MSA are separate from the Marketplace Services set out in these Terms provided however, that the terms of the MSA (including, without limitation, all representations, warranties, covenants, indemnities, limitations of liability, and interpretation or general provisions, etc.) applicable to the Marketplace Services shall be deemed to apply, and to be repeated as of the Marketplaces Effective Date. For the avoidance of doubt, the definition of: (a) “Services” under the MSA shall be deemed to include “Marketplace Services” as defined in these Terms; (b) the definition of “Publisher Properties” or “Company Properties” under the MSA shall be deemed to include “Publisher Properties” as defined in these Terms; (c) the definition of “Publisher” or “Company” under the MSA shall be deemed to include “you” or “Publisher” as defined in these Terms; and (d) “Index”, “IX” or other defined terms referring to Index Exchange Inc. shall be deemed to Include “We”, or “Index” as defined in these Terms for the purpose of the applicable terms set forth in the MSA. If you and Index do not have a pre-existing DPA, the data protection terms available online at: https://www.indexexchange.com/marketplaces-data-terms/ apply and are incorporated into these Terms by reference; otherwise the pre-existing DPA applies.

6.2. Effect. These Terms have no effect or impact upon the activities, obligations, or rights of the Parties under the MSA. These Terms do not amend the MSA, and for the avoidance of doubt, the MSA continues in full force and effect according to its terms and independently of these Terms. In the event of any conflict between the terms of these Terms and those of the MSA, these Terms shall control with respect to the Marketplace Services but in any other respect the MSA shall control.

7.1. Waiver/Severability/Survival. The waiver by either Party of a right or breach under these Terms will not constitute a waiver of any other right or subsequent breach. If any provision of these Terms is found to be invalid or unenforceable by a court of competent jurisdiction, such provision, or the applicable part of it, shall be severed from the remainder of these Terms, which will otherwise remain in full force and effect. Any right or obligation of the Parties in these Terms which, by its nature, should survive termination, will survive termination of these Terms.

7.2. Independent Contractors. The Parties are independent contractors. Nothing in these Terms shall be construed to create a joint venture, partnership, or agency relationship between the Parties. Neither Party has any authority of any kind to bind the other in any respect whatsoever.

7.3. Anti-Corruption. The Parties will comply with all applicable anti-corruption laws, including the US Foreign Corrupt Practices Act of 1997, the U.K. Bribery Act 2010 and the US Anti-Money Laundering Act, or of any similar law or regulation of any relevant jurisdiction. Neither Party will offer to pay or pay anything of value to anyone, including foreign government officials or related persons or entities, on the other’s behalf to corruptly: (i) influence any official act or decision; (ii) secure any improper advantage; (iii) obtain or retain business, or to direct business to any person or entity; or (iv) for the purpose of inducing or rewarding any favourable action in any matter related to the subject of these Terms. The Parties will keep accurate books and records in connection with these Terms.

7.4. Capitalized Terms. All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the MSA.

7.5. Interpretation. A reference to any statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time. Any words following the terms including, include, in particular, for example, e.g. or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding those terms.

7.6. Notices. All notices given under these Terms shall be in writing and shall be delivered: (i) personally; (ii) by e-mail (as designated by each of the Parties from time to time); (iii) via the UI; and/or (iv) via post on a website at an address communicated to you by Index from time to time. Any such notice shall be deemed to have been received: (A) if delivered personally, on the day on which it was delivered; or (B) if e-mailed, or delivered via the UI or via post on a website, on the business day on which it was sent or posted, or on the business day immediately following the day on which it was sent or posted (if not sent or posted on a business day).

7.7. Entire Agreement/Amendments/Counterparts. These Terms set forth the entire agreement and understanding between the Parties as to its subject matter and supersedes all prior discussions, agreements and understandings of any kind and every nature between them concerning such subject matter. Index may modify these Terms at any time; we will ensure these Terms, as amended from time to time, are available for your reference. If you do not agree to any changes, you may stop using the Marketplace Services in accordance with these Terms. These Terms will be considered executed in counterparts by each of the Parties when you begin or continue using the Marketplace Services and shall be deemed to constitute one valid and binding agreement to take effect as described in Section 1.2 above.