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Xandr Exchange Terms of Service

Last updated: August 29, 2019

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1. Xandr Exchange

(a) Thank you for your interest in our advertising technology services (the “Services”). By using our Services, you agree to these terms (the “Xandr Exchange Terms”, which were formerly known as the AppNexus Exchange Terms) and our Service Policies located in our user interface and/or wiki, which may include third-party service policies and terms and conditions which you may agree to in the future in connection with the use of the Services (collectively, the “Agreement”). If there is ever a conflict between these Xandr Exchange Terms and our Service Policies, the Xandr Exchange Terms take precedence. You should read the Agreement carefully.

(b) When we refer to “you” throughout the Agreement, it means the individual or entity using the Services (and/or any individual, entity or successor entity, agency or network acting on your behalf). When we refer to “we,” “us” or “Xandr” it means Xandr Inc. (formerly known as AppNexus Inc.), AppNexus Australia Pty. Ltd., AppNexus Latin America Tecnologia Em Publicidade Ltda. (the “Xandr Party” and collectively, the “Xandr Parties”). When we refer to the “parties,” it means you and the applicable Xandr Party.

2. Access to the Services; Xandr Exchange Accounts

Your use of the Services is subject to your creation and our approval of a Xandr Exchange account (an “Account”). We have the right to refuse or limit your access to the Services. By submitting your application to use the Services, if you are an individual, you represent that you are at least 18 years of age. By enrolling to use the Services, you permit us to serve advertisements (e.g. a banner, video, audio, or mobile advertisement) (an “Ad”) to your advertising inventory, including web, application-based, and video inventory (“Ad Inventory”) on your properties (e.g. websites, shows, or applications) and/or other properties approved by Xandr on which a Service is utilized (each a “Property”) and you give us any other rights reasonably necessary for us to provide the Services, including but not limited to the right to collect, store, use, disclose and/or transfer your Payee Information to provide the Services.

For any external sources of demand you enable to access your Ad Inventory through our header bidding solution (each, a “Demand Partner”), you acknowledge and agree that you have a direct relationship with them and will hold the Demand Partner (and not Xandr) solely responsible for any liability arising from their access to your Ad Inventory.

3. Your Use of Our Services

You may use our Services only as permitted by this Agreement and any applicable laws. You may discontinue your use of our Services at any time. You will be solely responsible for all use of the Services hereunder.

4. Changes to Our Services; Changes to the Agreement; Additional Services

(a) We are constantly changing and improving our Services. We may add or remove features or functionalities of the Services at any time, we may designate additional generally applicable rules and limitations to the Services, and we may suspend or stop a Service altogether. We may modify the Agreement at any time. We’ll post any modifications to the Xandr Exchange Terms and any modifications to the Service Policies (other than third-party policies incorporated by reference into the Service Policies which you can access directly) on their respective pages. Changes will not apply retroactively and generally will become effective 30 days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you don’t agree to any modified terms in the Agreement, you will have to stop using the affected Services.

(b) We may provide you additional Services, which may include but are not limited to Prebid Server Premium and Curation Auction Services (collectively, “Additional Services”). Additional Services will be considered part of the “Services” under this Agreement. More information about the Additional Services may be found in our user interface and/or wiki.

(c) We may, at our sole discretion, offer you “Prebid Server Premium”, which provides various services in respect of Prebid Server, including hosting Prebid Server within Xandr data centers and Demand Partner configuration and reporting. You may use Prebid Server Premium upon mutual agreement of the parties. We may at our discretion clear amounts paid by your Demand Partners for your Ad Inventory to the extent we have an executed agreement in place with such Demand Partners for the clearing of such payments. With respect to those Demand Partners that have not executed such an agreement, you acknowledge and agree that you will hold these Demand Partners (and not Xandr) solely responsible for any payments for their access to your Ad Inventory. You may request that all Demand Partners clear payments to you directly, and you will hold these Demand Partners (and not Xandr) solely responsible for any payments for their access to your Ad Inventory. Any request for the clearing of payments by your Demand Partners will be subject to the mutual written agreement (including by email) of the Parties. We will charge you a fee for your use of Prebid Server Premium equal to five percent (5%) of the gross amounts due to you in a given month by Demand Partners for your Ad Inventory sold through Prebid Server Premium, as determined by our billing measurements. For the avoidance of doubt, this fee will be charged in lieu of any other fees or Auction Service charge(s) that may be set forth herein.

(d) We may, at our sole discretion, offer you a curation auction service to package, and/or enable third-party curators to package, your Ad Inventory with Ad Inventory of other Sellers and/or data (the “Curation Auction Service”). You may decide to opt into or out of the use of such Curation Auction Service or a subset thereof with tools or options provided by Xandr. In the event your Ad Inventory is curated by a third-party curator, you may be charged additional charge(s) or fee(s) by such third-party curator in respect of your sales of Ad Inventory via a package they have curated, subject to any applicable rules and limitations we may designate with respect to such arrangement. If applicable, you will permit us to traffic deals on your behalf in our Console UI to facilitate sales of your Ad Inventory through the Curation Auction Service. Unless otherwise agreed by the Parties, your Ad Inventory sold in connection with the Curation Auction Service will comply with any implementation requirements that may be set forth herein or in our user interface and/or wiki. If you choose to use the Curation Auction Service, we may charge you additional fees as determined by us at our sole discretion.

5. Payments; Payment Obligations

(a) Subject to this Section 5 and Section 10 of these Xandr Exchange Terms and your valid use of the Services and compliance with the Agreement, you will receive a payment related to the Ad Inventory you sell using our Services, or other valid events performed in connection with your sale of Ad Inventory using our Services, in each case, solely as determined by us and based on our accounting. Such payment shall be equal to the effective amount owed to you in respect of all Ad Inventory impressions you sell (which amount is the amount remaining after the deduction of any “Auction Service” charge(s) that we may charge you or the applicable Buyer or any other fees charged pursuant to Section 4, as applicable). Any Auction Service charge(s) (which, for the avoidance of doubt, do not include the fees described in Section 4) charged to you will be no greater than fifteen percent (15%) on average.

(b) Except in the event of termination, we will pay you by the fifth business day to occur two months after the end of the calendar month in which you sold Ad Inventory (the “Xandr Payment Date”) (e.g., we will pay you in respect of Ad Inventory sold by you in January on or before the fifth business day in April) to the extent that we have collected and processed payments from the Buyers and/or Demand Partners, as applicable, in respect of their purchases of your Ad Inventory at least five (5) business days prior to such Xandr Payment Date and if the earned balance in your Account equals or exceeds $50. If the earned balance in your Account has not exceeded $50 in the trailing twelve-month period, we may cancel such payment permanently without notice. Unless expressly authorized by Xandr, you may not enter into any type of arrangement with a third party where that third party receives payments made to you under the Agreement or other financial benefit in relation to the Services.

(c) Payments to you may be withheld or adjusted to exclude any amounts refunded or credited to third parties buying your Ad Inventory using our Services (each a “Buyer”) and any amounts arising from any activity that violates our Service Policies and/or invalid activity, as determined by Xandr in its sole discretion. Invalid inventory is determined by Xandr in all cases and includes, but is not limited to, (i) spam, invalid queries, invalid impressions or invalid clicks on Ads generated by any person, bot, automated program or similar device, including through any clicks or impressions originating from your IP addresses or computers under your control; (ii) clicks solicited or impressions generated by payment of money, false representation, or requests for end users to click on Ads or take other actions; (iii) Ads served to end users whose browsers have JavaScript disabled; and (iv) clicks or impressions co-mingled with a significant amount of the activity described in (i, ii, and iii) above.

(d) In addition to our other rights and remedies, we may (a) withhold and offset any payments owed to you under the Agreement against any fees you owe us under the Agreement or any other agreement, or (b) require you to refund us within 30 days of any invoice, any amounts we may have overpaid to you in prior periods. If you dispute any payment made or withheld relating to the Services, you must notify Xandr in writing within 30 days of any such payment. If you do not, any claim relating to the disputed payment is waived. To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information in your Account. You are responsible for any charges assessed by your bank or payment provider.

(e) Our Currency Support Policies (currently located at https://console.appnexus.com/docs/currency-support) detail how the Services handle the purchase and sale of Ad Inventory in different currencies supported by us, including fees charged for any currency conversion. All amounts paid to you for the sale of your Ad Inventory will be paid in the account currency you select (the “Account Currency”). You can select a different Account Currency at any time, however your updated selection may not be effective until the first day of the month after you make your updated selection (e.g., if you select a different Account Currency in January, your Account Currency will not be updated until February 1).

6. Third-Party Beneficiaries

We operate a marketplace for Buyers and you to transact with each other. We are neither the Buyer nor the seller, and therefore do not assume, and expressly disclaim, all liability arising from your use of the Services except as expressly set forth herein, including but not limited to, liability arising from Ads, Ad Inventory, and Properties. To facilitate direct dispute resolution between Buyers and you using our Services, each Buyer that purchases Ad Inventory from you is an intended third-party beneficiary of your obligations hereunder in connection with their purchase of Ad Inventory from you. You agree not to assert a defense based on lack of privity against any Buyer seeking to enforce this Section 6.

7. Taxes

Unless we indicate otherwise, you are responsible for all taxes and government charges (if any) associated with your use of Services, other than taxes based on our net income. The Xandr Parties maintain the right to deduct or withhold any applicable taxes that we may be legally obligated to deduct or withhold from amounts due from the Xandr Parties, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you.

8. Confidentiality

You agree not to disclose Xandr Confidential Information without our prior written consent. “Xandr Confidential Information” includes: (a) all Xandr software, technology and documentation relating to the Services; (b) the existence of, and information about, beta features in a Service; and (c) any other information made available by Xandr that is marked confidential or would normally be considered confidential under the circumstances in which it is presented. Xandr Confidential Information does not include information that you already knew prior to your use of the Services, that becomes public through no fault of yours, that was independently developed by you, or that was lawfully given to you by a third party.

9. Data; Intellectual Property

(a) As between you and Xandr, you will own any information and/or data provided by you to the Services and the data from your sale or attempted sale of Ad Inventory (“Your Data”). We may use, access, retain, and disclose Your Data in order to provide the Services, to enforce the terms of the Agreement, to facilitate and optimize the purchasing of Ad Inventory by our buyers, to comply with any request of a governmental or regulatory body (including subpoenas or court orders), and to collect, use, and share aggregated information about Services. You give us all permissions we need to exercise these rights.

(b) Other than as set out expressly in the Agreement, neither party will acquire any right, title or interest in any intellectual property rights belonging to the other party or to the other party’s licensors. If Xandr provides you with software in connection with the Services, we grant you a non-exclusive, non-sublicensable license for use of such software. This license is for the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by Xandr, in the manner permitted by the Agreement. You may not copy, modify, distribute, sell, or lease any part of our Services or included software, nor may you reverse engineer or attempt to extract the source code of that software, unless laws prohibit those restrictions or you have our written permission. You will not remove, obscure, or alter our copyright notice, or other proprietary rights notices affixed to or contained within any of our services, software, or documentation. You grant to us and our affiliates a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into the Services any suggestion, input, enhancement request, recommendation, correction, specification, or other feedback provided by you relating to the operation of the Services.

(c) We may include your name and logo in our presentations, marketing materials, customer lists and financial reports. If applicable, we will be permitted to publicly announce, as “Xandr,” that we are a marketing agent for your Ad Inventory and that you are a participant in the Xandr premium video-first marketplace.

10. Privacy

You will ensure that your use of the Services, including the acquisition of any information and/or data provided by you to the Services, is compliant with applicable privacy laws, rules, and regulations, including industry self-regulations (“Privacy Laws”) and the applicable terms set forth in our Privacy Agreements, (currently located at  https://wiki.appnexus.com/display/GDPR/AppNexus+Privacy+Agreements ), as may be updated by us from time to time. Each of your Properties will contain an easily accessible and discoverable privacy policy that (i) complies with all applicable laws governing notice to end users, (ii) discloses your usage of third-party technology to collect and use data in connection with the Services; (iii) is consistent with industry standards; and (iv) provides end users access to a user choice mechanism such as, for example, the opt out page(s) of the Network Advertising Initiative, the Digital Advertising Alliance, or the European Digital Advertising Alliance. If, apart from your use of the Services, you associate data derived from your use of the Services with information that directly identifies an individual, you will do so only in accordance with all Privacy Laws.

11. Term; Termination; Suspension

You may terminate the Agreement at any time by contacting your primary business contact at Xandr and emailing notices@xandr.com. The Agreement will be considered terminated within 30 business days of Xandr's receipt of your notice. If you terminate the Agreement and your earned balance equals or exceeds the applicable threshold, we will pay you your earned balance within approximately 90 days after the end of the calendar month in which the Agreement is terminated. Any earned balance below $100 will remain unpaid. Xandr may at any time terminate the Agreement, or suspend or terminate the participation of any Property in the Services for any reason. If we terminate the Agreement due to your breach or due to invalid activity, we may withhold unpaid amounts or charge back your Account. If you breach the Agreement or Xandr suspends or terminates your Account, you (i) will not be allowed to create a new Account, and (ii) may not be permitted to monetize content on other Xandr products.

12. Representations; Warranties; Disclaimers

(a) You represent and warrant that (i) you have full power and authority to enter into the Agreement; (ii) you are the owner of, or are legally authorized to act on behalf of the owner of, each Property; (iii) you are the technical and editorial decision maker in relation to each Property on which the Services are implemented and you have control over the way in which the Services are implemented on each Property; (iv) Xandr has never previously terminated or otherwise disabled an Account created by you due to your breach of the Agreement or due to invalid activity; (v) entering into or performing under the Agreement will not violate any agreement you have with a third party or any third-party rights; and (vi) all of the information provided by you to Xandr is correct and current.

(b) OTHER THAN AS EXPRESSLY SET OUT IN THE AGREEMENT, WE DO NOT MAKE ANY PROMISES ABOUT THE SERVICES. FOR EXAMPLE, WE DON’T MAKE ANY COMMITMENTS ABOUT THE CONTENT WITHIN THE SERVICES, THE SPECIFIC FUNCTION OF THE SERVICES, OR THEIR PROFITABILITY, RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS. WE PROVIDE EACH SERVICE “AS IS”. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, EXPRESS, STATUTORY OR IMPLIED. WE EXPRESSLY DISCLAIM THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

13. Limitation of Liability

TO THE EXTENT PERMITTED BY LAW, EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS HEREUNDER OR YOUR BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY OBLIGATIONS AND/OR PROPRIETARY INTERESTS RELATING TO THE AGREEMENT, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THE AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND (ii) EACH PARTY’S AGGREGATE LIABILITY UNDER THE AGREEMENT IS LIMITED TO THE NET AMOUNT RECEIVED AND RETAINED BY THAT PARTICULAR PARTY IN CONNECTION WITH THIS AGREEMENT DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. EACH PARTY ACKNOWLEDGES THAT THE OTHER PARTY HAS ENTERED INTO THE AGREEMENT RELYING ON THE LIMITATIONS OF LIABILITY STATED HEREIN AND THAT THOSE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

14. Indemnification

You agree to indemnify and defend Xandr, its affiliates, agents, and Buyers from and against any and all third-party claims and liabilities arising out of or related to Your Data and/or the Properties, including any content served on the Properties that is not provided by Xandr, your use of the Services, or your breach of any term of the Agreement.

15. General Provisions

(a) Communications. In connection with your use of the Services, we may contact you regarding service announcements, administrative messages, and other information. You may opt out of some of those communications in your Account settings. For information about how to contact Xandr, please contact marketplacealpha@xandr.com.

(b) Governing Law; Venue. This Agreement is governed by and construed in accordance with New York law without regard to the conflicts of law rules thereof. The jurisdiction and venue for all disputes hereunder WILL BE the state and federal courts in the County and State of New York, AND THE PARTIES HEREBY CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.

(c) Assignment. You may not assign or transfer any of your rights under this Agreement.

(d) Entire Agreement; Amendments. This Agreement is our entire agreement relating to your use of the Services and supersedes any prior or contemporaneous agreements on that subject. This Agreement may be amended (i) in a writing signed by both parties that expressly states that it is amending the Agreement; or (ii) as set forth in Section 4 if you keep using the Services after Xandr modifies the Agreement.

(e) Severability. If any particular term of the Agreement is not enforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.

(f) Independent Contractors. The Parties are independent contractors, and this Agreement does not create an agency, partnership, or joint venture.

(g) Subcontractors. We may use subcontractors (including consultants, third-party services providers or agents) in connection with providing the Services.

(h) “Payee Information” means Payee identification information, payment account information, tax information and other related information deemed necessary by us or our third-party partner(s) or any other third-party correspondents or processors in order to provide the Services.

(i) Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.

(j) No Waiver. Other than as set forth in Section 5, the failure of either party to enforce any provision of the Agreement will not constitute a waiver.

(k) No Third-Party Beneficiaries. Other than as set forth in Sections 6 and 14, this Agreement does not create any third-party beneficiary rights.

(l) Survival. Any provisions of this Agreement that by their nature are intended to survive, will survive termination (including for the avoidance of doubt the provisions of Section 8) of these Xandr Exchange Terms will survive termination.

(m) Country Specific Restrictions. Our Service Policies may include restrictions on the countries in which you can use our Services (including restrictions on audiences you can target with your advertising inventory). You should review them carefully.

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