These Advertiser Terms and Conditions (“Terms”) are effective as of the date you accept and agree to them via your Zeus Prime account (“Effective Date”), and are made by and between WP Company LLC d/b/a The Washington Post, with offices at 1301 K Street NW, Washington, DC 20071 (“The Post” or “we”) and the entity identified under the company name in your Zeus Prime account (“Advertiser” or “you”). If you are an agency or otherwise purchasing advertising on behalf of an advertiser, you agree to be bound by these Terms on behalf of, and as if you were, the Advertiser hereunder, and you represent and warrant that you have all necessary rights, authorizations, and permissions to do so.

    WHEREAS, The Post develops and makes available a cloud-based platform (“Zeus Prime”) to enable advertisers to purchase, manage, and target advertising (“Ad(s)”) across multiple publishers, and to allow publishers to offer, sell, and serve such Ads by integrating with ad servers, including Google Ad Manager (“GAM”).

    WHEREAS, Advertiser would like to use Zeus Prime to purchase, manage, and target Ads on such publishers’ websites and associated domains.

    NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, The Post and Advertiser hereby agree as follows:

1.    This Agreement. This Agreement governs your use of Zeus Prime as an advertiser (i.e., to purchase and target Ads). If you also use Zeus Prime as or on behalf of a publisher to offer inventory on a website for the purchase of advertising, that use is governed separately by our publisher agreement. Any subsidiaries of which you own a controlling interest may also use Zeus Prime as advertisers or agencies, as applicable, under this Agreement, but you are fully responsible and liable for their compliance with the terms herein.

2.    Access and Use; Restrictions. 

a.    Access, Use, and Authorization. We grant you a non-exclusive, non-transferable right to access and use Zeus Prime solely in the ordinary course of your business. You authorize us to reproduce, distribute, perform, and display your Ad(s) on publisher websites and associated domains as directed by you through Zeus Prime. You will establish and maintain passwords, login credentials, and account administration tools for your Zeus Prime account. You shall keep such materials and tools confidential, and you are responsible for all activity occurring under the passwords, login credentials, and account administration tools. 

b.    Ownership. The Post and its licensors own all intellectual property and other rights in Zeus Prime, all improvements, updates, modifications, and enhancements to the foregoing, and our names, logos, and other marks. Your only rights in Zeus Prime are the rights expressly granted in this Agreement; all other rights are reserved by us. You retain all right, title, and interest in the Ads. At your option, you may provide suggestions, ideas, requests, enhancements, recommendations, or other feedback regarding Zeus Prime (“Feedback”). We may use such Feedback in any manner and for any purpose at our sole discretion, including in our products and services, without any additional consideration to you.

c.    Unauthorized Use. You agree not to: (a) reverse engineer Zeus Prime, modify or make derivative works based upon Zeus Prime, copy any features, functions, or other aspect of Zeus Prime, or use or access Zeus Prime to build a competitive product or service; (b) bypass or breach any security protocol, metering system, or other protection of Zeus Prime, or otherwise work around any technical limitation; (c) resell, distribute,  transfer, or use on a time share or service bureau basis Zeus Prime or, except as expressly contemplated herein, use Zeus Prime for the benefit of any third party; or (d) use Zeus Prime in violation of any applicable laws or regulations or outside the scope expressly permitted herein.

3.     Payment and Reporting.

    a.    Payment. Except as otherwise set forth herein, all payment obligations are non-cancelable, and all amounts paid are nonrefundable and non-creditable. You may purchase Ads using a credit card or, with our prior approval, via invoice.

        i.    For any Ad purchased via credit card, you must prepay at the time of order. For any impressions purchased, but not delivered as set forth in Section 3(d), a refund is processed 3 days after the Campaign date has ended. If there are several campaigns in a booking, refund is generated 3 days after the last campaign in the booking reaches its end date.

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        ii.    For any Ad purchased via invoice, you will be invoiced monthly for impressions run for the previous month. You agree to pay such invoice within 30 days of the date of that invoice. If you have not paid or disputed in good faith an amount within thirty (30) days after payment is due, we may charge you interest up to one-and-one-half percent (1.5%) per month on any outstanding balance, plus all expenses of collection.

    b.    Taxes. Except as explicitly provided herein, our fees are exclusive of taxes (including sales tax, VAT, GST, or similar taxes), levies, or duties (collectively, “Taxes”) imposed by taxing authorities, and you shall be responsible for payment of all such Taxes, excluding only U.S. (federal, state, or District of Columbia) Taxes based on our income. You shall make all payments without any deduction or withholding for any Taxes.  If you are required by law to make any deduction or withholding from any payment, notwithstanding anything to the contrary in the Agreement, you will increase the gross amount you pay us to account to for such deduction or withholding.

    c.    Measurement and Reporting. All billing is based on impressions delivered as measured by GAM. Advertiser will not be refunded any amounts paid to The Post for impressions delivered. We will provide access to reporting in your Zeus Prime account about delivery of your Ads, including impressions, clicks, and cost. 

    d.    Cancellation and Non-Fulfillment. You may pause or cancel the remainder of an Ad campaign at any time through your Zeus Prime account. Pausing a campaign will not modify the scheduled campaign end date, and the number of impressions delivered during the campaign may therefore be reduced if you pause an Ad. We may pause or cancel the remainder of an Ad campaign at any time in our sole discretion, and (regardless of whether a campaign is paused or canceled) we may be unable to fulfill the number of impressions you order, including due to lack of inventory. You will be charged for all impressions delivered, including any impressions delivered while a pause or cancellation request is processed.

4.     Ads.

    a.    Ad Standards. You represent and warrant that you have all necessary rights, authorizations, and permissions with respect to the Ads, including without limitation the right to distribute and publish the Ads via Zeus Prime, and that the Ads will not violate any applicable law or infringe any third-party rights, including any intellectual property right. In addition, you must comply with all applicable GAM policies, including without limitation the Google Ads Policies available at https://support.google.com/adspolicy/answer/6008942?hl=en, and with Zeus Prime’s ad policy requirements (collectively, “Ad Policy”), found HERE, as may be updated from time-to-time in The Post’s sole discretion with notice to you via your account and/or e-mail.

    b.    Review and Approval. Ads may be subject to review and approval by The Post,  in our sole discretion. You must submit Ads via your account for review in advance according to the specifications and timeframe provided in Zeus Prime, or within the timeframe in the Policies for the applicable ad type, if such timeframe is greater. Campaigns and impressions may be delayed or reduced if Ads are submitted late or do not comply with these Terms or the Ad Policy. We may reject an Ad, require modifications or substantiation, revoke approval, or take any other action as set forth in the Ad Policy at any time in our sole discretion. However, notwithstanding anything to the contrary herein, we have no liability or responsibility for any Ad, and you retain all such liability and responsibility with respect to any Ad you purchase, submit, and/or order through Zeus Prime.

    c.    Targeting. The Post may provide you the option to target Ads, including by geographic area, device type, publisher, or article topic. You are solely responsible for your selection of targeting preferences. The Post does not make any warranty that the Ads will reach any category that is targeted, or about the accuracy of our targeting classifications.

5.    Term and Termination. 

    a.    Term. The Agreement commences on the Effective Date and shall remain in effect until it is terminated as set forth herein (“Term”).

    b.    Termination. Either party may terminate this Agreement for cause if the other party defaults in the performance of any of its obligations hereunder and has not cured such default within thirty (30) days after written notice thereof. In addition, either party may terminate this Agreement at any time in its sole discretion with written notice.

    c.    Effect of Termination. Upon the expiration or termination of this Agreement, your right to access and use Zeus Prime shall immediately terminate, and The Post shall stop delivering your Ads. You will pay us for all delivered impressions as set forth in Section 3. Sections 2b-2d, 3-4a, 5c, 6-7, 8b, and 9-11 will survive the expiration or termination of this Agreement.

    d,    Suspension. The Post may immediately suspend or deactivate Advertiser’s access to and/or use of all or any part of Zeus Prime if Advertiser violates any material term of this Agreement. The Post shall use reasonable efforts to give Advertiser written notice and an opportunity to cure such violation prior to suspension.

6.    Data and Privacy. The Post reserves the right to gather analytics and usage data (“Data”) about the use of Zeus Prime, including with respect to the Ads. The Post may use Data for its own internal business purposes, and may publish or disclose Data (e.g., for benchmarking purposes) in aggregate form from which Advertiser cannot reasonably be identified. For avoidance of doubt, the parties agree that The Post will not collect, and neither party will share with the other, any data regarding specific end users who are served any Ads, including any data that would constitute personally identifiable information, such as Personal Information under CCPA or Personal Data under GDPR. Advertiser agrees to (i) make any disclosures to users, and obtain any required consents, that are necessary to give The Post the rights set forth in this Agreement; (ii) comply with applicable privacy laws and Internet advertising industry guidelines (e.g., the self-regulatory principles/code of conduct of the Network Advertising Initiative, the Interactive Advertising Bureau, and the Digital Advertising Alliance); and (iii) ensure that its website, including any website linked from the Ads, contains a privacy policy that discloses the use of third-party technology and any related data collection and use.

7.    Confidential Information. Each party acknowledges that it may have access under this Agreement to information that relates to the other party’s past, present or future products, customers, software, research, development, improvements, inventions, processes, techniques, designs or other technical data, or regarding administrative, management, financial, marketing or manufacturing activities of the disclosing party or of a third party who may have supplied it to the disclosing party on a confidential basis. All such information, including any materials or documents containing such information, is considered “Confidential Information.” Both during and after the term of this Agreement, each party agrees to preserve and protect the confidentiality of the Confidential Information, and to use and disclose such Confidential Information only as necessary to carry out its obligations or obtain its benefits under this Agreement, and subject to the terms herein. If a receiving party is compelled by law to disclose the other party’s Confidential Information, it shall provide prior notice (to the extent legally permitted) and reasonable assistance, at the other party’s expense, if such other party contests the disclosure. Confidential Information does not include information that (a) is generally known to the public; (b) was lawfully obtained from a third party; or (c) the receiving party can demonstrate it independently develops or previously knew. In addition and notwithstanding anything to the contrary herein, Confidential Information also does not include the CPM rates charged for your Ads.

8.    Representations, Warranties, and Disclaimer.

a.    Representations and Warranties. Each party represents and warrants that: (i) it has full power and authority to enter into and perform this Agreement; (ii) this Agreement and such party’s performance hereunder will not breach any other agreement to which the party is bound; and (iii) it will abide by all applicable laws in connection with this Agreement.

b.    Disclaimer. Except for the representations and warranties above, The Post disclaims any and all warranties with respect to Zeus Prime and the related services hereunder, whether express or implied, including the implied warranties of merchantability and fitness for a particular purpose; warranties arising from a course of dealing, usage or trade practice; and warranties concerning the non-infringement of third-party rights. Without limiting the foregoing, The Post makes no warranty or guarantee regarding the level of impressions of Ads, the timing of delivery of such impressions, or the results of any Ad or Ad campaign.

9.    Indemnification. 

a.    The Post agrees to indemnify, defend and hold harmless Advertiser from any costs, expenses (including reasonable attorneys’ fees), losses, liabilities, damages and penalties (collectively, “Losses”) that Advertiser may incur as a result of a claim or cause of action brought or asserted by a third party (a “Claim”) (i) alleging that Zeus Prime infringes any intellectual property rights, including any patent, trademark, and/or copyright, or violates or misappropriates any trade secret or proprietary right, or (ii) relating to The Post’s gross negligence or willful misconduct. The Post will have no liability or obligation with respect to any Claim to the extent caused by (i) any use of Zeus Prime that violates this Agreement or otherwise is not authorized; (ii) the Ads, or (iii) access to or use of Zeus Prime in combination with any hardware, system, software, network, or other materials or service not provided by The Post (clauses (i) through (iii), “Excluded Claims”).  

b.    Advertiser agrees to indemnify, defend and hold harmless The Post from any Losses that The Post may incur as a result of (i) an Excluded Claim or (ii) a Claim relating to Advertiser’s gross negligence or willful misconduct. 

c.    Each party shall promptly notify the other party in writing of any claim for which such party believes it is entitled to be indemnified. The party seeking indemnification (the “Indemnified Party”) shall cooperate with the other party (the “Indemnifying Party”), at the Indemnifying Party’s sole cost and expense, in the defense or settlement of the Claim. The Indemnifying Party shall promptly take control of the defense of such Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The Indemnified Party’s failure to perform any obligations under this Section 9.c will not relieve the Indemnifying Party of its obligations under this Section 9 except to the extent that the Indemnifying Party can demonstrate that it has been prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnifying Party shall not enter into any settlement that affects the Indemnified Party’s rights or interest without the Indemnified Party’s prior written approval, which shall not be unreasonably withheld. 

d.    If any part of Zeus Prime is in The Post’s opinion likely to be claimed to infringe or otherwise violate any third-party intellectual property right, or if Advertiser’s use of the Zeus Prime is enjoined or threatened to be enjoined, The Post may, at its sole discretion, terminate this Agreement with respect to all or part of Zeus Prime, and require that Advertiser cease any use of it.

e.    This Section 9 sets forth the sole remedies of Advertiser and The Post’s sole liability and obligation for any actual, threatened or alleged claims that this Agreement or any subject matter hereof (including Zeus Prime) infringes or otherwise violates any trade secret or third-party intellectual property or proprietary right.

10.    Limit of Liability.

a.    In no event will either party be liable for any indirect, special, incidental, or consequential damages arising under this Agreement, including those damages arising from loss of data, loss of revenues or profits, failure to integrate the service with your existing systems or software, or damage to software or equipment, in each case even if such party has been advised of the possibility of such damages. 

b.    Except with respect to each party’s indemnification obligations hereunder, each party’s maximum liability for any and all claims arising out of or in connection with this Agreement (whether such claims are based in contract, warranty, tort, indemnity or otherwise), shall not exceed, in the aggregate, the sum of the total fees paid or payable to The Post by Advertiser under this Agreement within the twelve (12) months preceding the most recent event giving rise to such claim. Multiple claims shall not increase this limit. 

11.    General.

a.    Governing Law. This Agreement shall be governed by the laws of the State of New York. All disputes arising out of or in connection with this Agreement must be brought in the state or federal courts located in New York, New York. 

b.    Publicity. Advertiser shall not use the name or marks of The Post for any commercial purpose without The Post’s prior written consent. The Post may refer to Advertiser as a user of Zeus Prime in our online and print marketing materials, and may use Advertiser’s name and marks in our marketing materials or press releases that specifically describe Zeus Prime.

c.    Assignment. Neither this Agreement, nor any rights or obligations of a party relating to this Agreement, may be assigned or transferred by a party without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement to an entity that controls, is controlled by, or is under common control with such party (where control means ownership of at least half of the shares, equity interest, or other voting securities), or to a successor to substantially all of the assets or business of the assigning party related to this Agreement; provided, however, that you shall give us reasonable prior written notice of any such assignment.

d.    Force Majeure. Neither party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event.  “Force Majeure Event” means (i) floods, earthquakes, or other similar elements of nature or acts of God; (ii) riots, civil disorders, rebellions or revolutions in any country; or (iii) any other cause beyond the reasonable control of the non-performing party, including outbreaks, epidemics, or pandemics to the extent precipitating governmental orders or mandates substantially impairing normal business operations, provided the non-performing party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing party through the reasonable use of alternate sources, workaround plans or other reasonable precautions.

e.    Concluding Provisions. This Agreement, including any Order: (a) may be executed in one or more counterparts; (b) may be amended or supplemented only by written instrument signed by the parties; (c) does not create a partnership, joint venture, agency, employment, or other similar relationship between the parties; (d) is for the sole benefit of the parties and does not confer any benefit on any third party; (e) shall remain valid and enforceable despite a holding by any court that any specific provision is invalid or unenforceable, except for such specific provision; (f) does not limit either party’s ability to seek equitable relief; (g) constitutes the entire agreement and understanding of the parties with respect to its subject matter; and (h) supersedes all oral communications and prior writings with respect thereto. We reserve the right modify these Terms with notice to you via your account and/or by e-mail, or to discontinue or make changes to Zeus Prime from time to time. No text or information set forth on any of your purchase orders or other ordering documents shall amend this Agreement. Neither party will be treated as having waived any rights by not exercising such rights under this Agreement. Each party may provide notices under this Agreement to the other party by sending an email to the address specified for that party on the signature page below. Notice will be treated as received when the email is sent. You are responsible for keeping your email address for notifications current throughout the term of this Agreement.