Audiences T&Cs
Last Updated: December 20, 2024
1. Definition
In addition to the defined terms in the Pogo Audiences Order Form, the following defined terms have the following meanings:
“3P Ad Platform” means a publisher or advertising technology company that is engaged in programmatic or direct digital advertising transactions, such as a publisher (e.g., social media network), ad server, or demand-side platform.
“Customized Audience” means a Pogo Audience created specifically for Advertiser pursuant to this Agreement.
“Device IDs” means a unique identifier that is linked to a particular user (either directly or indirectly, such as via the user’s device) and includes, but is not limited to, mobile device advertising ID (e.g., IDFA or AAID), email address, phone number, or IP addresses.
“Fees” has the meaning set forth in the Order Form.
“Intellectual Property Rights” means patents, patent applications, copyrights, trademarks, trade secrets, or other intellectual property rights.
“Off-The-Shelf Audiences” means Pogo Audiences that are not Customized Audiences.
“Pogo Audiences” means Audiences created by Pogo, or otherwise licensed by Pogo from third parties, that Pogo makes available for use by Advertiser pursuant to this Agreement.
“Audience” means a grouping of Device IDs where such Device IDs represent corresponding users that appear to share characteristics.
“Retargeting” means Advertiser’s targeting of ads.
“Targeting Purposes” means the “Targeting Purposes” set forth in the Order Form on a per-Audience basis.
“Look-A-Like Targeting” means Advertiser’s targeting of an Audience with ads where the users represented within such Audience (by way of such Device IDs) shares characteristics with the users represented within the Pogo Audience that served as a seed set to generate such “look-a-like” Audience.
2. Use of Pogo Audiences
2.1 Ad Clients
Where Advertiser is acting on behalf of an Ad Client, Advertiser may perform under this Agreement and exercise its rights under this Agreement only on behalf of an Ad Client (e.g., Advertiser cannot serve ads on behalf of Advertiser itself or for any other advertising client of Advertiser). Ad Client is not a third-party beneficiary under this Agreement.
2.2 3P AD Platforms
Advertiser and Pogo will mutually agree upon the 3P Ad Platforms to which Pogo shall provide the Pogo Audiences for use by Advertiser for the Targeting Purposes, without limitation on Pogo’s rights under this Agreement. Advertiser shall have a written agreement with all 3P Ad Platforms to which Pogo provides Pogo Audiences to, and such written agreement must not contradict the terms of this Agreement. Advertiser shall remain in compliance with such written agreements with such 3P Ad Platforms and any other policies, guidelines, terms, or rules of such 3P Ad Platforms. Advertiser agrees that the applicable 3P Ad Platform may generate the audiences used for the Targeting Purposes via the 3P Ad Platform’s matching of that Pogo Audience with that 3P Ad Platform’s users and, further, that such matching may occur when such Pogo Audience is contained within Pogo’s account on such 3P Ad Platform; for the avoidance of doubt, Advertiser’s targeting of such matched audiences is deemed use of the Pogo Audience itself for Retargeting or use of an Audience for Look-A-Like Targeting (as applicable) under the Fees section set forth in the Order Form. Advertiser shall cooperate with Pogo to set up any Advertiser account permissions on a 3P Ad Platform as reasonably required by Pogo under this Agreement (e.g., where the Pogo Audience is matched initially within Pogo’s account, Pogo may require inter-account permissions on the 3P Ad Platform to provide Advertiser with the ability to target such Pogo Audience on such 3P Ad Platform).
Advertiser agrees that Pogo may reject any 3P Ad Platforms in Pogo’s sole discretion (in whole or in part; for example, in the latter case, Pogo can provide certain Pogo Audiences to a particular 3P Ad Platform but not other Pogo Audiences to that same 3P Ad Platform, such as based on 3P Ad Platform rules). Pogo may, without limitation on any of the foregoing, require that Pogo enters into a written agreement with a 3P Ad Platform (where such agreement is satisfiable to Pogo) before Pogo agrees to provide the Pogo Audiences to such 3P Ad Platform. Without further penalty to Pogo, Pogo may remove any Pogo Audiences from any 3P Ad Platform (a) on reasonable grounds related to (i) the 3P Ad Platform’s compliance with laws, privacy standards, or other reasonable concerns (e.g., material changes to the 3P Ad Platform’s contractual terms) or (ii) Advertiser’s compliance with this Agreement or (b) in light of any governmental acts (e.g., demand, order, civil investigative demands, subpoenas, law enforcement requests) or any changes in law or facts known to Pogo, in each case, to the extent applicable to this Agreement. Pogo will endeavor to provide Advertiser with prior notice of such reasonable grounds before Pogo removes such Pogo Audiences except that, for the avoidance of doubt, Pogo is not required to reveal any attorney-client privileged information within such notice to Advertiser.
Pogo is not responsible or liable for any of 3P Ad Platforms’ audience size, conversion, impression, lead, or other estimations or predictions, impressions served, match rates, campaign performance, pricing or other rates (and any increase or decreases in such pricing or rates), brand safety, ad fraud, bot traffic, contractual terms with Advertiser or Ad Client, measurement, reports, security, or other features, functionality, or acts or omissions.
2.3 Restrictions on Use.
(a) Advertiser shall not, and shall ensure that any third party shall not, (i) access or attempt to access any Pogo Audiences such that Advertiser or such third party might be able to view the Device IDs that comprise such Pogo Audiences or otherwise identify individuals (except that a 3P Ad Platform may view such Device IDs or otherwise identify such individuals for the Targeting Purposes); (ii) use, disclose, or otherwise process any Pogo Audiences in any sharing arrangement, or resell, rent, lease, sublicense, or transfer the Pogo Audiences to any third party (except that Pogo’s agreement with Advertiser regarding Pogo’s disclosure of Pogo Audiences to a 3P Ad Platform pursuant to the first sentence of Section 2.2 is not deemed a violation of this subsection (ii) by Advertiser); (iii) merge a Pogo Audience with, or use any Pogo Audience in conjunction with, data about other individuals held by Advertiser or another third party (e.g., other segments or Device IDs which are combined or linked with such Pogo Audience or used in conjunction with such Pogo Audience within a campaign), except that a 3P Ad Platform may undertake matching of the 3P Ad Platform’s Device IDs with the Device IDs within the applicable Pogo Audience for the process of generating the targetable audience for the Targeting Purposes; (iv) use the Pogo Audiences in any manner that would deem the Pogo Audience to be “sensitive data” (or similar term, such as “consumer health data” or “sensitive personal information”) under applicable law; (v) otherwise use the Pogo Audiences in any manner other than as expressly permitted under this Agreement. Advertiser’s Ad Client’s acts and omissions with respect to Pogo Audiences will be deemed Advertiser’s acts and omissions under this Agreement, as if Advertiser itself committed such acts or omissions.
(b) Advertiser may use Pogo Audiences under this Agreement to promote Advertiser’s or, as applicable and to the extent so authorized by Ad Client, Ad Client’s games or other products or services (collectively, “Advertiser Services”) except that Advertiser shall not promote Advertiser Services that display or promote any of the following: (i) obscene material; (ii) pornography, adult entertainment, fetishes, or sexual services; (iii) reproductive health; (iv) firearms, ammunitions, or graphic or explicit violence (e.g., whether fictional or real: injury to humans or animals, acts of torture or terrorism, suicide); (v) automotive warranties; (vi) credit repair agencies; (vii) lotteries; (viii) illegal drugs, drug paraphernalia, or substance abuse; (ix) alcohol; (x) gambling (except where Advertiser promotes such gambling Advertiser Service in a manner that complies with laws and any self-regulatory requirements and best practices); (xi) hate speech, harassment, intimidation, bullying, excessive profanity, threats, discrimination, or religious extremism; (xii) black-hat hacking, cracking, warez, file sharing, counterfeit goods, or content that otherwise violates intellectual property rights; (xiii) anything otherwise illegal or non-compliant with the law; or (xiv) anything that violates any policies, guidelines, terms, or rules of the applicable 3P Ad Platform.
3. Privacy
The Parties shall comply with the DPA. Advertiser and Pogo will post their respective privacy policies on their respective applicable online or offline properties, adhere to such privacy policies, and ensure that such privacy policies comply with applicable laws.
4. Invoice Disputes
If Advertiser disputes an invoice delivered to the Finance Contact’s email address pursuant to “Billing” under the Order Form, Advertiser must provide Pogo with a notice of such dispute along with the details regarding the reasons for the dispute and supporting evidence that supports such reasons, in each case, within fifteen (15) days from such delivery of such invoice or else the invoice is deemed final and non-disputable. For the avoidance of doubt, Advertiser is obligated to provide payment for non-disputed fees in any event.
5. Term and Termination
This Agreement commences on the Order Form Effective Date and continues until terminated. Either Party may terminate this Agreement at any time for convenience by providing at least forty-eight (48) hours’ prior written notice to the other Party. Upon termination of this Agreement, all rights granted to Advertiser under this Agreement will terminate immediately and Advertiser shall immediately cease use of Pogo Audiences. Pogo shall invoice Advertiser for any Fees owed by Advertiser to Pogo up to the point of termination. Each of the following will survive termination of this Agreement: Advertiser’s payment obligations, the DPA, any relevant provisions of the Order Form (e.g., Fees, Account Access), and the following sections of Exhibit A: Section 2.1, Section 2.2 (but only the last paragraph of Section 2.2), Section 3, Section 4, this Section 5 (but only the immediately preceding sentence, and this sentence, of Section 5), Sections 6 through and including 10, Section 12, Section 14, and Section 15.
6. Confidentiality
Confidentiality. “Confidential Information” means any technical data, trade secret, know-how, or other information disclosed by a Party (the “disclosing Party”) in writing, orally, or other form to the other Party (the “receiving Party”). Both Parties will treat the content of this particular Agreement as “Confidential Information” as if they were the receiving Party of this Agreement. Pogo Audiences are Confidential Information of Pogo. Confidential Information does not include information: (i) already lawfully known to or lawfully, independently developed by the receiving Party; (ii) disclosed in published materials, the disclosure of which is not otherwise in breach of this Agreement; (iii) generally known to the public; or (iv) lawfully obtained from any third party, which has no obligation of confidentiality with respect to such information. The receiving Party shall protect the Confidential Information from unauthorized use, access, disclosure, or other processing using at least the degree of care it uses to protect its own confidential information but in no event less than a reasonable degree of care and will not use Confidential Information of the disclosing Party for any purpose other than for its performance under this Agreement without the prior written consent of the disclosing Party. The receiving Party shall not disclose any Confidential Information to any third party except to its Representatives who: (i) need to know such Confidential Information for purposes of the receiving party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the receiving Party’s obligations under this section; and (iii) are bound by written confidentiality obligations at least as protective of the Confidential Information as the terms set forth in this section or by a legally enforceable code of professional responsibility to protect the confidentiality of such Confidential Information. Notwithstanding the obligations of this section, a Party may disclose the terms of this Agreement: (1) in connection with the requirements of an initial public offering or securities filing; (2) in confidence to accountants, banks, and financing sources and their advisors; (3) in confidence in connection with the enforcement of this Agreement or rights under this Agreement; and (4) in confidence in connection with a merger or acquisition or proposed merger or acquisition or the like. A receiving Party may disclose Confidential Information as required to comply with laws or orders of courts or competent governmental authority, in each case, to the extent legally binding on such receiving Party, provided that such receiving Party will (a) prior to any disclosure, give the disclosing Party reasonable advance written notice (except to the extent the receiving Party’s compliance with the foregoing in this (a) would cause it to violate the law or order) and either (x) allow the Disclosing Party to seek a protective order or other appropriate remedy or (y) take commercially reasonable efforts to obtain confidential treatment for any Confidential Information required to be disclosed; and (b) disclose such information only as required by the law or order. Confidential Information remains the sole property of the disclosing Party. No license is granted by the disclosing Party to the receiving Party with respect to Confidential Information disclosed unless otherwise expressly provided in this Agreement. “Representatives” means the directors, officers, employees, legal advisors, and financial advisors of a Party.
7. Representations and Warranties; Disclaimer; Ownership.
Each Party represents and warrants that (i) it has the full right, power, and authority to enter into and perform under this Agreement and (ii) its entering into this Agreement, exercise of its rights under this Agreement, or performance of its obligations under this Agreement does not and will not violate any laws applicable to its activities under this Agreement or any agreement it has with a third party. For the avoidance of doubt, where Advertiser is acting on behalf of its Ad Client, Advertiser represents and warrants that Advertiser is duly authorized by the Ad Client to enter into this Agreement, select and use the Pogo Audiences, display ads on behalf of such Ad Client pursuant to the Targeting Purposes listed in the Order Form, and otherwise perform Advertiser’s obligations and exercise Advertiser’s rights under this Agreement. Except as expressly provided for in this Agreement and to the maximum extent permitted by applicable law, the Pogo Audiences and any other materials or services provided by Pogo in connection with this Agreement are provided on an “AS IS” basis and ,with respect to the forgoing, Pogo expressly disclaims any and all representations and warranties, whether express or implied, including accuracy, merchantability, non-infringement, or any implied warranty of fitness for a particular purpose or use. All rights not expressly granted to the other Party are hereby reserved. As between the Parties, Pogo owns all rights, title, and Intellectual Property Rights in the Pogo Audiences (and, for the avoidance of doubt, any of the Device IDs therein) and any other Pogo data (e.g., Pogo’s Confidential Information) and there is no transfer of rights, title, or Intellectual Property Rights in such Pogo Audiences except that Advertiser may use the Pogo Audiences as expressly permitted under this Agreement.
8. Limitation of Liability.
8.1 Limitation of Certain Damages.
NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS, LOST BUSINESS, LOST REVENUE, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES, FAILURE TO REALIZE EXPECTED SAVINGS OR LOSS OR UNAVAILABILITY OF OR DAMAGE TO DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY, NEGLIGENCE, AND MISREPRESENTATION), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
8.2 Damages Cap.
NEITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF (I) THE AMOUNT PAID OR PAYABLE BY ADVERTISER UNDER THIS AGREEMENT IN THE PAST TWELVE (12) MONTHS OR (2) FIVE HUNDRED THOUSAND DOLLARS ($500,000). THIS PROVISION APPLIES REGARDLESS OF HOW THE LIABILITY AROSE OR THE THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY, NEGLIGENCE, AND MISREPRESENTATION).
8.3 Carve-outs.
The exclusions and limitations of liabilities set forth in Section 8.1 and Section 8.2 immediately above will not apply with respect to a Party’s (i) breach of its confidentiality obligations under this Agreement; (ii) breach of the DPA; (iii) breach of Section 2.3 of this Exhibit A; (iv) gross negligence or intentional or willful misconduct, or (iv) indemnification obligations under this Agreement.
9. Indemnification.
Advertiser shall hold harmless and indemnify Pogo for all liabilities and damages arising from or in connection with any third-party claim or action, the allegations or substance of which, if taken as true, would amount to Advertiser’s breach of this Agreement.
10. Relationship of Parties; Publicity.
Nothing contained in this Agreement shall be implied to create a partnership, agency, joint venture, or employment relationship between the Parties and neither Party shall have any authority to bind the other Party. Nothing in this Agreement grants to a Party any permission to use the other Party’s trademarks without the other Party’s prior written consent except that Pogo may use such trademarks and Advertiser’s name as part of Pogo’s marketing materials (e.g., sales pitch decks).
11. Notices.
All legal notices hereunder shall be in writing via email. For legal notices from Pogo to Advertiser, Pogo shall use the Advertiser’s Legal Contact Email Address set forth under the Order Form. For legal notices from Advertiser to Pogo, Advertiser shall use the following email address: legal@joinpogo.com. All legal notices are deemed provided upon delivery to the inbox of the applicable email address.
12. Force Majeure.
Besides Advertiser’ payment obligations, to the extent a Party’s performance of this Agreement is prevented by reason of a Force Majeure event, such Party, upon giving prompt notice to the other Party, shall be excused from such performance to the extent of such Force Majeure event on the condition that the Party so affected had taken all reasonable steps to avoid such causes of nonperformance and, during such period of non-performance, shall continue to take reasonable steps to remove any causes of nonperformance. The Party so affected shall continue performance of this Agreement that was excused whenever such causes are no longer materially relevant. “Force Majeure” means fire, flood, or other casualty or accident; acts of God; severe weather conditions; strikes or labor disputes; health pandemic or other outbreak of disease, virus, or other illnesses; war or other violence; act of government which makes performance illegal or impossible; shortage of, or inability to obtain, parts, raw materials, data, or other resources from normal sources (e.g., third-party data sources relied upon by Pogo); failure of equipment, power line variations, or any other act or condition whatsoever beyond the reasonable control of the Parties hereto (whether or not similar to any of the foregoing enumerated events).
13. Governing Law; Venue.
New York law governs all legal proceedings brought by a Party against the other Party arising out of this Agreement, without giving effect to its principles of conflicts of law. Any legal action or claim arising out of or related to the Agreement must be instituted exclusively in the United States District Court for the Southern District of New York or, only if there is no federal subject matter jurisdiction, in any state court of New York having subject matter jurisdiction located in the city of New York, and each Party hereby submits to the exclusive jurisdiction of those courts for purposes of any action or claim.
14. Miscellaneous.
This Agreement is the entire agreement between the Parties related to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, regarding such subject matter. All amendments, alterations, or modifications must be in writing and are only effective when mutually agreed upon by the Parties. If any provision is held unenforceable or invalid, it is the Parties’ intention that the balance of any such provision shall not be affected. This Agreement is binding upon, and inures to the benefit of, the permitted successors and assigns of the Parties except, however, that Advertiser shall not assign this Agreement without the prior written consent of Pogo. Notwithstanding anything to the contrary set forth in this Agreement, this Agreement is for the sole benefit of Advertiser and Pogo and nothing in this Agreement expressed or implied shall give or be construed to create rights (legal, equitable, or otherwise) for any person or entity (including Ad Client) as a third-party beneficiary of this Agreement. This Agreement may be executed in any number of counterparts, which together shall constitute one and the same agreement. The waiver by either Party of a breach of any provisions contained in this Agreement will be in writing and will in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. If either Party fails to perform any term of this Agreement and the other Party does not enforce that term, failure to enforce on that occasion will not prevent enforcement on any future occasion. This Agreement shall be construed equally against the Parties regardless of who is more responsible for its preparation.
