This Discord Advertising IAB Addendum (this “Discord Addendum”), which amends and supplements the IAB STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS VERSION 3.0 (the “IAB Terms” and collectively with this Discord Addendum, the “Campaign Terms”), governs and forms a part of any applicable insertion order (the “IO”) signed by and between Discord Inc. (“Media Company”) and the advertiser designated on an IO (“Advertiser”), or, if applicable, Advertiser’s agency designated on an IO (“Agency”). The terms of this Discord Addendum will control over and fully supersede any similar, conflicting, inconsistent or overlapping terms in the IAB Terms or other parts of an IO; however, if an IO expressly states that certain terms set forth in the IO are intended to supersede the terms of this Discord Addendum, then, in the event of conflict, those terms of the applicable IO will control only for that IO and only to the extent of such conflict. Any purchase order terms, “clickthrough” or other online agreements, or other similar documents made available to Media Company by Advertiser or Agency are hereby rejected by Media Company and will not apply to any Quest. Capitalized terms used but not defined herein will have the meanings given to such terms in the IAB Terms.
Where Advertiser is purchasing directly from Media Company, (i) Section 2 and any references to Agency herein will be deemed deleted and will not apply; and (ii) all references in the IAB Terms to Agency, will be deemed to be references to Advertiser.
1. Quest Terms.
a. Quests. Media Company will implement a promotional campaign on its platform (the “Discord Platform”) for Advertiser’s applicable property designated on an IO (the “Advertiser Property”) where eligible users of the Discord Platform will be able to complete certain agreed-upon tasks relating to the Advertiser Property and earn certain agreed-upon rewards (“Rewards”), as further detailed in an applicable IO (each such campaign, a “Quest”).
b. Quest T&Cs. Media Company will, in consultation with Advertiser or Agency, as applicable, establish the specific terms and requirements for users governing each Quest (“Quest T&Cs”), and will publish the Quest T&Cs to users in connection with such Quest. The Quest T&Cs will address, at a minimum (i) user eligibility requirements and any criteria and tasks that must be satisfied by a user in order to receive a Reward; (ii) the nature of the applicable Reward, including whether the Reward will be supplied by Media Company (each, a “Media Company Reward”) or Advertiser (each, an “Advertiser Reward”); and (iv) any other terms, conditions and limitations pertaining to the redemption and use of the Reward.
c. Advertiser Rewards. Unless otherwise indicated on an IO, the Reward will be an Advertiser Reward approved by Media Company and either the Advertiser or Agency, as applicable. For any Quest with an Advertiser Reward: (i) reasonably in advance of the applicable flight dates for a Quest, the parties will agree in writing (email to suffice) on and implement the fulfillment and redemption mechanics for the Advertiser Reward, which may consist of the delivery to Media Company of a sufficient number of redemption codes for users to redeem for Advertiser Rewards; (ii) Advertiser or Agency, as applicable, will ensure that the Advertiser Reward and the redemption process is consistent with the Quest T&Cs; and (iii) in the event of any fulfillment or redemption issues (including, without limitation, insufficient or defective redemption codes) in connection with a Quest, Media Company may suspend such Quest until such issues are resolved. For clarity, Advertiser is solely responsible for the Advertiser Rewards and any associated fraud, losses, or other issues in connection with such Advertiser Rewards.
d. Media Company Rewards. For any Quest where the applicable IO indicates there will be a Media Company Reward, Media Company will (i) ensure that such Media Company Reward and redemption process is consistent with the Quest T&Cs; and (ii) will have responsibility (unless otherwise agreed in the IO) and control over the design and creation of such Media Company Reward. Media Company will obtain Advertiser’s or Agency’s approval (not to be unreasonably withheld) for any Media Company Reward that contains or is derived from Advertising Materials. Media Company Rewards may not be available to users in certain regions where not supported by the Discord Platform. Advertiser and Agency may not terminate for convenience any Quest with (i) a Media Company Reward that contains or is derived from Advertising Materials or (ii) any other custom Media Company Reward created specifically for the Quest.
e. Advertiser Marks License.
i. Advertiser and Agency hereby grant Media Company a limited, non-exclusive, royalty-free license to use and display Advertiser’s name, designated trademarks and associated logos, and any names, trademarks or logos associated with the Advertiser Property (the “Advertiser Marks”) in connection with the implementation of a Quest, the performance of Media Company’s obligations under the Campaign Terms and any IO, or as otherwise approved in writing by Advertiser or Agency.
ii. All goodwill and improved reputation generated by Media Company’s use of the Advertiser Marks inures to the exclusive benefit of Advertiser. Media Company will use the Advertiser Marks in a manner consistent with any branding guidelines provided by Advertiser to Media Company in writing.
f. Advertising Materials. Advertiser and Agency hereby grant Media Company a limited, non-exclusive, royalty-free license to use, display, adapt, translate, modify, copy, publicly perform, transmit and distribute the Advertising Materials in connection with the implementation or promotion of a Quest, the performance of Media Company’s obligations under the Campaign Terms or as otherwise approved by Advertiser or Agency, as applicable, including, without limitation, in connection with the development, distribution and making available of applicable Media Company Rewards containing or derived from such Advertising Materials. The licenses set forth herein are sublicensable by Media Company to its affiliates, agents, and subcontractors in connection with Media Company performance hereunder (and, with respect to Media Company Rewards containing or derived from Advertising Materials, to end users who claim any such Media Company Rewards in connection with a Quest). Advertiser or Agency, as applicable, will, at its own cost and expense, obtain all necessary licenses, consents, approvals and permissions from any third party required for Media Company to exercise its rights under the foregoing license. For purposes of the Campaign Terms, “Advertising Materials” means any content, materials, copy, branding, images, names, audio, music, video, artwork, designs, descriptions, specifications, and other elements made available by Advertiser or Agency to Media Company for use in connection with a Quest, including, without limitation, any elements, materials, assets or intellectual property from the Advertiser Property.
g. Cooperation. Media Company’s ability to implement the Quest and its obligations under the Campaign Terms and any IO (including, without limitation, the ability to meet the applicable timeframes and schedules for a Quest as specified in an IO) will be contingent upon the timely provision of cooperation from Advertiser or Agency, as applicable, in connection with the Quest, which cooperation includes, without limitation, providing any redemption codes, Advertising Materials and/or Advertiser Rewards as required by Media Company with sufficient lead time for the applicable Quest, compliance with applicable Policies or other campaign and asset specifications, and timely feedback, reviews and approvals for any items and matters requiring approval or input in connection with a Quest. Advertiser and Agency will adhere to any Policies and other agreed upon timeframes, campaign specifications, and development schedules in connection with the foregoing. Media Company will not be liable or responsible for any delays or issues caused by Advertiser’s or Agency’s failure or delay in providing such cooperation.
h. Quest Prompts. Media Company will be responsible for developing, producing, and displaying prompts or notifications promoting the availability of a Quest (“Quest Prompts”) to certain users on applicable surfaces within the Discord Platform. Notwithstanding anything to the contrary, Media Company will have ultimate authority and control over the content, placement, frequency, delivery, timing and accompanying disclosures in connection with all Quest Prompts on the Discord Platform. Media Company reserves the right to suspend or cancel the targeting, personalization, and/or delivery of Quest Prompts in connection with any Quest.
i. Reporting. For each Quest, Media Company will provide summary reports to Advertiser or Agency, as applicable, regarding certain estimated performance metrics, insights and KPIs within a reasonable timeframe after the midpoint and end date of such Quest. The information in such reports may be used by Advertiser solely for its own internal business purposes but will otherwise be considered Media Company’s Confidential Information.
j. Estimates. Notwithstanding anything to the contrary, any impression or reach numbers, impression-related commitments, targeting parameters, geographies or estimates provided on an IO and any information provided in connection with any report delivered by Media Company with respect to any Quest are provided by Media Company solely on an “AS IS” basis as estimates for informational purposes based on the data reasonably available to Media Company and are not guaranteed or considered binding by the parties in connection with any Quest. Media Company will not be liable (or required to offer any makegood) for any errors, shortfalls, inaccuracies or omissions in connection with any of the foregoing.
2. Agency Authority. Agency represents, warrants and covenants that it has obtained and will maintain all consents, approvals and authorizations from Advertiser necessary for Agency to (i) bind Advertiser to the Campaign Terms and any IO, act on behalf of Advertiser and otherwise comply with its obligations in connection with the Campaign Terms and any IO, including, without limitation, with respect to (a) the execution of any IOs on Advertiser’s behalf, (b) the ability to pay Media Company for any Quest; (c) the ability to share Advertiser’s Confidential Information with Media Company; and (c) the management and provision of any and all approvals, feedback and reviews in connection with the Campaign Terms and any IO (e.g., the review and approval of Rewards and other Quest elements, press releases, promotional materials, or creative assets); and (ii) grant the licenses set forth in the Campaign Terms and any IO, including, without limitation, any such licenses to Advertiser Marks and Advertising Materials set forth herein. Media Company will be entitled to rely on any documents executed, instructions provided or approvals granted by Agency on an Advertiser’s behalf in connection with the Campaign Terms and any IO. Agency will indemnify and hold Media Company harmless from and against any losses or unpaid obligations under any IOs arising from Agency’s violation of this Section.
3. Taxes. Unless otherwise stated in an IO, Media Company’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use, sales or withholding taxes collected by any jurisdiction. Each party is responsible for all of its own business taxes (including, but not limited to, net income, gross receipts, franchise, or other similar business taxes) arising as a result of or in connection with any IO. Advertiser or Agency, as applicable, is responsible for self-assessing any transaction taxes (e.g. sales tax, VAT, GST or similar taxes) due with respect to any IO. Media Company will collect, and Advertiser or Agency, as applicable, will pay any applicable transaction taxes if Media Company determines that it has a duty to collect such taxes. Advertiser or Agency, as applicable, is responsible for any transaction taxes on user rewards redeemed outside of the Discord Platform. For transaction tax purposes, Quests will be treated as services related to promotional advertising campaigns. To the extent withholding tax is required by applicable law, Advertiser or Agency, as applicable, will be responsible for collecting and remitting such taxes to the appropriate tax authorities. Additionally, Advertiser or Agency, as applicable, will provide Media Company an original receipt or documentation from the tax authority for the withholding tax payments.
4. Amendments to IAB Terms.
a. General Acknowledgements. The parties acknowledge and agree that: (i) Quests are treated as flat-fee based Deliverables delivered on the Discord Platform for purposes of the IAB Terms; (ii) the terms of the IAB Terms relating to inventory availability, delivery schedule, ad placement and positioning, use of collected data, and reporting will be superseded and governed by the applicable terms of Section 1 of this Discord Addendum and any IO; and (iii) Quests do not use or involve any Third Party Ad Server and any associated terms in the IAB Terms do not apply.
b. Specific Amendments.
i. Section X(b) of the IAB Terms is hereby amended to add the following new subclauses (iv) and (v):
“(iv) allegations that the Advertising Materials or Advertiser Marks infringe, misappropriate or otherwise violate any intellectual property rights of a third party; or (v) Advertiser Rewards, including, without limitation, any claims from users that Advertiser Rewards were misleading or inaccurate or that they were not properly fulfilled.”
ii. Section XI of the IAB Terms is hereby amended and restated as follows:
“Excluding Agency’s, Advertiser’s, and Media Company’s respective indemnification obligations under the Campaign Terms, damages that result from a breach of Section XII, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable (i) for any consequential, indirect, incidental, punitive, special, or exemplary damages whatsoever or any damages for loss of profits, business interruption, loss of information, and the like, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages; or (ii) in the aggregate in connection with these Campaign Terms or the IO in excess of the amount paid or payable by Agency or Advertiser to Media Company hereunder.”
iii. For purposes of Section XIV(d) of the IAB Terms, the choice of law governing any IO will be the State of New York without reference to its choice of law rules, and all claims, legal proceedings or litigations arising in connection with the Campaign Terms will be brought solely in state and federal courts located in New York City.
iv. Section XIV.e of the IAB Terms is hereby amended and restated as follows:
“All notices of termination or breach must be in English, in writing and addressed to the other party’s legal department (with a copy to any contact listed on an IO). The email address for notices being sent to the Media Company legal department is legal.notices@discordapp.com. All other notices must be in English, in writing (including email) and addressed to the other party’s applicable notice information designated on an IO. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).”