Insertion Order General Terms and Conditions
25.2.2021
1 Subject Matter of this Agreement
1.1 This Agreement set forth the conditions under which Sportradar shall provide the Services to Advertiser in connection with any Campaign. In case of any contradiction between these IOGTC, the IO, or the DPA, the following order of prevalence shall apply
(a) DPA (if applicable);
(b) IO; and
(c) IOGTC
1.2 The Parties agree to follow all best practice and guidelines established by the Interactive Advertising Bureau (“IAB”) found at https://www.iab.com/guidelines/ with respect to any Campaign delivered under this Agreement. For the avoidance of doubt, the Parties agree that Sportradar may enter into similar agreements (as this Agreement) with competitors of the Advertiser.
1.3 Advertiser shall comply at all times with the EGBA Code of Conduct on Responsible Advertising for Online Gambling, available at: https://www.egba.eu/uploads/2020/04/200428-Code-of-Conduct-on-Responsible-Advertising-for-Online-Gambling.pdf and any other third party policy mentioned in this Agreement or shared by Sportradar in writing (e-mail sufficient) from time to time.
2 Rights and Obligations of Sportradar
2.1 Sportradar shall use its reasonable efforts in accordance with best industry practice to deliver the Services as specified in the Agreement.
2.2 Sportradar will share Platform Credentials granting Advertiser access to Sportradar Marketing Cloud where agreed between the Parties in writing (e-mail is sufficient). Advertiser acknowledges that Sportradar may deny or rescind Advertiser access to the Sportradar Marketing Cloud at Sportradar’s sole discretion.
2.3 Sportradar agrees to use the Advertiser Data in compliance with this Agreement and agrees to use commercially reasonable efforts to promptly remove, or cause to be removed, any Ad from any Property that Advertiser reasonably deems objectionable, upon receipt of written notice from Advertiser.
2.4 Advertiser acknowledges that Sportradar shall not be obliged to deliver any Campaign (or any part thereof) that (i) does not comply with this Agreement, with any agreement between Sportradar and a Partner, or with any applicable law, regulation, or other judicial or administrative order; (ii) may tend to bring, disparagement, liability, or other legal, regulatory, and/or reputational harm upon Sportradar or the Partners; or (iii) may otherwise be reasonably determined to be objectionable. Sportradar reserves the right to stop any Campaign and/or reject or remove, or cause to be removed, from any Property any Advertiser Data that in Sportradar’s reasonable discretion does not comply with this clause.
2.5 Sportradar agrees to use its reasonable efforts to deliver Campaigns in the Territory. Advertiser acknowledges that geographic targeting is not 100% accurate and therefore Sportradar cannot and does not guarantee that all ad impressions will be served in the geographic region targeted. Sportradar is not responsible for (i) impressions served outside of specified regions/audience targets, (ii) any unavailability of inventory in geographic regions selected by Advertiser or (iii) discrepancies in reporting resulting from the Advertiser’s use of geolocation techniques or third-party ad servers or geolocation services providers.
2.6 Sportradar shall not share Advertiser’s assigned third-party Platform Credentials with any other third party unless (i) Sportradar has obtained Advertiser’s prior written consent; or (ii) Sportradar is obliged to share Platform Credentials by law, court ruling or order of competent authority.
2.7 Unless otherwise agreed in writing (e-mail sufficient), the positioning of Ads, the frequency with which the Ads are delivered, or any other feature of the Campaign not explicitly specified in the Agreement, is at Sportradar’s, or the relevant Partners’, sole discretion.
3 Rights, Obligations and Warranties of Advertiser
3.1 Advertiser represents, warrants, and covenants that it shall have, and maintain during the Campaign Term, all necessary rights, licences, consents, permissions and business permits (including approvals from any regulatory or other authority [including a gaming authority] and intellectual property rights) to supply and advertise its services, and to use the Services in the Territory. Advertiser shall promptly provide evidence of its compliance with this clause on Sportradar’s request. Advertiser agrees to promptly inform Sportradar in writing of any changes to its maintenance of any required necessary rights, licences, consents, permissions and business permits. Advertiser shall further provide such information to Sportradar as Sportradar may reasonably require to satisfy any information reporting, disclosure, and other related obligations to any regulatory or other authority (including a gaming authority) from time to time.
3.2 Advertiser represents, warrants, and covenants that (i) the Advertiser’s use of the Services and/or of any Sportradar Platform; (ii) the Advertiser Data as well any Property related to the Advertiser Data (e.g. landing page); and/or (iii) any product or service promoted by the Advertiser Data or otherwise by the use of the Services by the Advertiser shall not, at any time include, promote or link the Services to any Infringing Content; and/or target minors and/or individuals below the legal age to gamble in the Territory.
3.3 Advertiser represents, warrants, and covenants that it shall have, and maintain during the Campaign Term sufficient substantiation for all claims made and shall fulfil all commitments set out in the Ads, including, but not limited to: all necessary rights, licenses, permits, and abilities to advertise the material contained in or referred to in the Advertiser Data. Advertiser expressly represents, warrants and covenants to Sportradar that Sportradar shall not need any additional rights, licenses, permits, or abilities to provide the Services agreed under the IO.
3.4 Advertiser shall not perform any act, or include any content in the Ad or related landing page, that misrepresents any association between Advertiser and Sportradar or any Partner involved in the delivery of the Ads including, without limitation, anything that may imply a sponsorship and/or a promotional relationship between the Advertiser and the publisher with a third-party whose content appears in the Ad.
3.5 Advertiser is responsible for any activity performed and/or taking place in its Platform Account, including activity performed by Sportradar under Advertiser’s instructions. Advertiser is not responsible for any activity performed by Sportradar independently (e.g. troubleshooting).
3.6 Advertiser shall be solely responsible for:
(a) the completeness, accuracy, compliance and delivery of any Advertiser Data;
(b) Implementation of any Tracking Code as reasonably indicated by Sportradar before the beginning of the Campaign Term;
(c) the delivery of all Advertiser Data required for each Campaign as reasonably required by Sportradar no later than one (1) calendar week before the start of the Campaign Term.
3.7 Advertiser shall promptly provide evidence of its compliance with the terms of this Agreement upon Sportradar’s reasonable written (including by email) request. Advertiser shall further provide such information to Sportradar as Sportradar may reasonably require to satisfy any information reporting, disclosure and other related obligations to any regulatory requirement and/or authority.
3.8 Advertiser shall cooperate with Sportradar as reasonably required by Sportradar to perform the Services in a timely and professional manner. This includes, but it is not limited to, embedding Tracking Code in the Advertiser’s sites as reasonably required for Sportradar to perform the Services and measure Campaign Performance.
3.9 Unless otherwise agreed in the IO, third party services and/or product offers from Sportradar will remain valid for Advertiser’s acceptance for only five (5) business days after the offer is made, as Sportradar cannot guarantee the availability of third-party services or products.
3.10 For the avoidance of doubt Advertiser acknowledges that Advertiser uses the Services and instructs Sportradar to provide the Services and deliver Campaigns on the Territory at Advertiser’s own risk.
3.11 Advertiser may not place Tracking Code in the Ads unless allowed by Sportradar in writing (e-mail sufficient).
4 Payment Terms
4.1 Unless otherwise stipulated in the Agreement, Sportradar shall invoice Advertiser any Compensation listed in the IO upfront on a monthly basis. Compensation shall be paid in the currency listed in the IO.
4.2 Sportradar shall provide Campaign Reports via the Sportradar Marketing Cloud or email as agreed by the Parties in writing (e-mail sufficient) or at Sportradar’s discretion in the absence of any such agreement. If there is a discrepancy of more than 10% between the Campaign Reports issued by Sportradar, or any third party on behalf of Sportradar, and any Campaign Performance reports issued in good faith by Advertiser, or any third party appointed by Advertiser, and provided to Sportradar, the Parties shall jointly undertake a joint technical verification and enhancement within the immediately subsequent thirty (30) day period. Should a discrepancy of more than 10% remain despite the technical verification and enhancement measures taken hereunder, the Parties shall agree in good faith on an appropriate remedy in accordance with best industry practice and standards.
4.3 Unless otherwise stated in the IO, Compensation and any other monies due to Sportradar shall be (i) due for payment without deduction within ten (10) days from the date of the invoice (ii) transferred to the bank account listed on the invoice or otherwise indicated by Sportradar in writing (e-mail sufficient); and (iii) net of any VAT/GST (if applicable).
4.4 The Advertiser shall solely be responsible to pay any and all Taxes that might be payable in the Advertiser’s jurisdiction and the Territory as a result of the Campaign services hereunder.
4.5 If any sums due to be paid by the Advertiser to Sportradar under this Agreement are not paid when due, then in addition to its other rights, Sportradar may, subject to a 7 (seven) business day written notice:
(a) charge interest at the published Bank Rate (EURIBOR) plus five per cent (5%) per annum on the overdue amount, from the date the sum fell due for payment until it is paid in full;
(b) recover from the Advertiser reasonable legal costs (including attorney fees and internal costs) which incur for recovering the overdue amount;
(c) require the Advertiser to pay, immediately, all amounts under the Agreement or any other contract between Sportradar and the Advertiser that are invoiced but unpaid, in which event any such amounts will immediately become due; and/or
(d) suspend or cease supplying the Services or terminate the Agreement through a ten (10) days written notice to Advertiser.
5 Tax
5.1 In the countries where they are tax resident, Sportradar and Advertiser shall support each other in solving tax related issues as a result of the Services provided under this Agreement. If applicable, Sportradar will charge or collect sales tax from Advertiser, unless Advertiser provides to Sportradar fully completed and valid resale certificates with respect to the Services unsolicitedly within a period of one month after this Agreement is concluded. For VAT/GST/sales tax purposes, Advertiser hereby confirms that the Services purchased from Sportradar will be wholly and exclusively used for Advertiser’s own business purposes.
5.2 The Advertiser shall solely be responsible to pay any and all Taxes that might be payable in the Advertiser’s jurisdiction as a result of the Services hereunder. Unless otherwise expressly stated herein, all sums due to Sportradar are intended and shall be paid net, without any deduction of any kind, whether due to Taxes or any other reason.
5.3 If applicable, Advertiser will record the information according to the Council Implementing Regulation (EU) 2019/2026, and all applicable successor and equivalent regulations pursuant to European Union or Member State law, for a minimum of 10 years. On Sportradar’s request, Advertiser will disclose these information to Sportradar and acknowledges and agrees that Sportradar will record these information pursuant to the Council Implementing Regulation (EU) 2019/2026, and all applicable successor and equivalent regulations pursuant to European Union or Member State law, for a minimum of 10 years. For the purpose of the General Data Protection Regulation, Sportradar will act as a data processor for any personal data that has been collected, stored or processed to comply with legal obligations arising from tax law. In case such request is made, Advertiser shall inform Sportradar about the legal obligation to which the Advertiser is subject.
6 Term and Termination
6.1 This Agreement shall enter into force at the beginning of the Campaign Term, and expire by the end of the Campaign Term, unless terminated early in accordance with the Agreement.
6.2 Either Party may terminate this Agreement upon written notice at any time through written notice during the Campaign Term of this Agreement for good cause with immediate effect. Good causes are, in particular and without limitation:
(a) if the other Party commits a material breach (either anticipatory or incapable of remediation) of this Agreement; or
(b) if upon notice in writing to the other Party of any other material breach (being capable of remediation) of any provisions of this Agreement committed by that Party, and said breach shall not have been remedied within 15 (fifteen) calendar days after receipt of the written notice from the other Party requesting such remediation; or
(c) upon the filing or institution of bankruptcy, reorganization, liquidation or receivership proceedings by the other Party.
6.3 Sportradar may terminate this Agreement by written notice with immediate effect in the event of a Change of Control of Advertiser.
6.4 Sportradar may in any event terminate this Agreement for any reason by giving the Advertiser seventy-two (72) hours written notice.
6.5 Sportradar is entitled to terminate this Agreement immediately by giving written notice to Advertiser if (i) the legal and regulatory situation of gambling or betting in the jurisdictions targeted by the Services change; (ii) Sportradar is subject to a regulatory (or similar) investigation in connection with this Agreement; and/or (iii) it determines in its sole discretion that the Agreement may jeopardize Sportradar’s relationship with any public authority.
7 Intellectual Property Rights
7.1 Save as explicitly provided in the Agreement, nothing in this Agreement or in the business relationship between the Parties, shall constitute or be construed as the transfer, license or grant to a Party of any intellectual property right (including rights in/to software), or any other right or interest in any Sportradar Assets, Advertiser Data, information, content, data or work product made available by one Party to the other (including in any trademarks or other intellectual property rights owned by Sportradar, Advertiser, or any subsidiaries and Affiliates). Notwithstanding the foregoing, the Advertiser recognizes the validity of the title in the information and data made available by Sportradar and the trademarks and other intellectual property rights owned by Sportradar or any of its subsidiaries and Affiliates, whether registered or not.
7.2 Advertiser acknowledges that Sportradar owns and retains all right, title, and interest, including all intellectual property rights, in and to the Sportradar Assets and all technologies related thereto, including any and all algorithms or processes developed by Sportradar and all derivatives, modifications, or improvements of or to any of the foregoing made by or for Sportradar whether or not created or developed in connection with the Services.
7.3 Advertiser grants to Sportradar a worldwide, non-exclusive, perpetual, irrevocable, royalty-free license, to use and/or sub-license any Feedback for any purpose whatsoever.
7.4 Sportradar grants to Advertiser a limited, revocable, non-exclusive, non-sublicenseable, non-transferrable, right and license to use any Sportradar Asset made available by Sportradar to the Advertiser under the Agreement for Advertiser’s own internal business purposes so long as such use is in compliance with this Agreement and only for the Campaign Term.
7.5 Advertiser must immediately inform Sportradar of all cases of potential infringement of its intellectual property, including but not limited to trademarks, copyrights, software rights,, processes, etc., or other property owned by Sportradar, or any of its subsidiaries and Affiliates, made available hereunder that comes to the Advertiser’s attention, and shall render all assistance reasonably requested in connection with any action taken by Sportradar or its subsidiaries and Affiliates relating thereto. The control of such action, including the determination of whether to initiate action or to settle, shall be under the sole control of Sportradar.
7.6 Advertiser agrees that absent prior written authorization from Sportradar, for each discrete instance, Advertiser shall not: (a) use the Services or the Sportradar Assets for any purpose not specified in this Agreement; (b) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the Sportradar Assets or access thereto; (c) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble the Sportradar Assets or any portion thereof; (d) test the Sportradar Assets for vulnerabilities or service limitations; (e) use the Sportradar Assets for the purposes of developing a product, program or service that will be owned by a third party or that would compete with Sportradar’s products or services; (f) use the Sportradar Assets in any way which adversely affects Sportradar or other third parties; (g) access data of any third-party without authorization; (h) circumvent any privacy features (e.g., an opt-out) that are part of the Sportradar Assets; (i) seek, in a proceeding filed during the Term, an injunction on any part of the Sportradar Assets based on patent infringement or (j) attempt, or allow a third party, to do any of the foregoing.
7.7 Advertiser consents to Sportradar using Advertiser’s brand name(s) for general marketing purposes, such as in presentations or on the Sportradar’s company websites. Advertiser may withdraw its consent at any time by giving written notice to Sportradar.
8 Liability
8.1 TO THE FULLEST EXTENT PERMITTED BY LAW, SPORTRADAR DOES NOT MAKE OR GIVE, NOR HAS ANY AGENT, SUBCONTRACTOR OR AUXILIARY OF SPORTRADAR THE AUTHORITY TO (NEITHER EXPRESSLY NOR IMPLIED) MAKE OR GIVE, ANY REPRESENTATION, WARRANTY OR UNDERTAKING AS TO, AND ADVERTISER WILL NOT HOLD SPORTRADAR OR ANY OF ITS AFFILIATES LIABLE FOR THE ACCURACY, COMPLETENESS, AVAILABILITY, RELIABILITY, TIMELINESS, OR QUALITY OF THE SERVICES, SPORTRADAR ASSETS, OR OTHER INFORMATION AND DATA MADE AVAILABLE UNDER THE AGREEMENT, OR AS TO THEIR FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR THE OUTCOME OF ADVERTISER’S USE OF THE SERVICES.
8.2 ADVERTISER SHALL, AT ITS OWN EXPENSE, INDEMNIFY, SETTLE, DEFEND AND HOLD HARMLESS SPORTRADAR, ITS AFFILIATES, DIRECTORS, OFFICERS AND/OR EMPLOYEES AND ANY PARTNER FROM AND AGAINST ANY AND ALL LOSSES, DEMANDS, DAMAGES, FINES, COSTS, EXPENSES (INCLUDING, ATTORNEY FEES AND COSTS) AND LIABILITIES SUFFERED OR INCURRED, BY SPORTRADAR OR A PARTNER ARISING HOWSOEVER FROM ANY THIRD PARTY CLAIM OR REGULATORY INVESTIGATION BASED ON ANY ACTUAL OR ALLEGED: (I) BREACH BY ADVERTISER (AND ITS AGENTS, AUXILIARIES, ETC.) OF ANY OF ITS OBLIGATIONS, REPRESENTATIONS, WARRANTIES, AND/OR COVENANTS UNDER THIS AGREEMENT; (II) INFRINGEMENT, VIOLATION OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY ADVERTISER (AND ITS AGENTS, AUXILIARIES, ETC.); (III) BREACH BY ADVERTISER (AND ITS AGENTS, AUXILIARIES, ETC.) OF ANY APPLICABLE LEGISLATION OR REGULATION, INCLUDING BUT NOT LIMITED TO ADVERTISER’S FAILURE TO SECURE ALL RIGHTS, TITLE, AND INTEREST NECESSARY TO DISPLAY THE ADVERTISER DATA; AND (IV) ADVERTISER’S (AND ITS AGENTS, AUXILIARIES, ETC.) MODIFICATIONS OF THE SPORTRADAR ASSETS, TRACKING CODE OR SERVICES IN BREACH OF THIS AGREEMENT.
8.3 ADVERTISER AGREES TO, AT ITS OWN EXPENSE, INDEMNIFY, DEFEND, SETTLE AND HOLD SPORTRADAR AND ITS AFFILIATES, DIRECTORS, OFFICERS AND/OR EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL TAX LIABILITIES, COSTS, DAMAGES, CLAIMS AND/OR EXPENSES AS A RESULT OF THE SERVICES PROVIDED UNDER THIS AGREEMENT.
8.4 THE SERVICES, THE SPORTRADAR PLATFORMS AND ANY OTHER CONTENT OR INFORMATION MADE AVAILABLE BY SPORTRADAR ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER SPORTRADAR, NOR ANY OF ITS AFFILIATES, PARTNERS, AGENTS, SUBCONTRACTORS OR AUXILIARIES SHALL BE LIABLE TO THE ADVERTISER OR TO ANY CLIENTS OF THE ADVERTISER FOR ANY DIRECT AND/OR IMMEDIATE DAMAGES OR LOSS OR ANY LOSS OF PROFIT (INCLUDING A LOSS OF TURNOVER), DATA, BUSINESS, OR GOODWILL.
8.5 TO THE FULLEST EXTENT PERMITTED BY LAW, AND EXCLUDING DAMAGES ARISING FROM FRAUD, BREACH OF CONFIDENTIALITY, DEATH, PERSONAL INJURY, OR ADVERTISER’S INDEMNIFICATION DUTIES UNDER THIS AGREEMENT, NEITHER PARTY, NOR ANY OF ITS AFFILIATES, NOR SPORTRADAR’S SOFTWARE OR DATA PROVIDERS, PARTNERS, AGENTS, SUBCONTRACTORS OR AUXILIARIES, SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY CLIENTS OF THE ADVERTISER FOR ANY INDIRECT DAMAGES OR ANY LOSS OF PROFIT, TURNOVER, DATA, BUSINESS OR GOODWILL OR FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES ARISING IN CONNECTION WITH THE SPORTRADAR ASSETS, PRODUCTS, DATA, SERVICES, CONTENT AND/OR SOLUTIONS (IN EACH CASE WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT, EQUITY, STATUTE, TORT OR OTHERWISE), INCLUDING (BUT NOT LIMITED TO): (A) ANY LOSS OR DAMAGE WHICH THE ADVERTISER MAY INCUR AS A RESULT OF THE SPORTRADAR ASSETS, PRODUCTS, DATA, SERVICES, CONTENT AND SOLUTIONS FAILING TO BE WHOLLY ACCURATE, COMPLETE, RELIABLE, ACCESSIBLE OR OTHERWISE AS A RESULT OF ANY BREACH OR NON-PERFORMANCE OF THIS AGREEMENT; OR (B) ANY LOSS OR DAMAGE RESULTING FROM CLAIMS BROUGHT BY ANY CLIENT OF THE ADVERTISER.
8.6 IN ANY EVENT, ADVERTISER AGREES THAT SPORTRADAR’S TOTAL LIABILITY HEREUNDER, INCLUDING SPORTRADAR’S LIABILITY ARISING UNDER ITS INDEMNIFICATION DUTIES, SHALL BE EXPRESSLY LIMITED TO AN AMOUNT EQUAL TO THE COMPENSATION PAID BY ADVERTISER TO SPORTRADAR DURING THE CAMPAIGN TERM.
9 Data
9.1 If Advertiser receives any information about End Users from the Services, Advertiser shall not attempt to (a) merge any information about End Users with personally identifiable information held by Advertiser for advertising purposes; (b) identify End Users; and/or (c) build segments based on, or retarget, End Users save as with Sportradar’s written consent.
9.2 As between Advertiser and Sportradar:
(a) Advertiser owns all right, title and interest in the Advertiser Data.
(b) Sportradar owns all right, tittle and interest in the Sportradar Data.
(c) Advertiser grants Sportradar a worldwide, non-exclusive, royalty-free license to:
(i) use, reproduce, edit, distribute, display, sub-license and store Advertiser Data to provide the Services during the Campaign Term;
(ii) use Advertiser Data during and after the Campaign Term to:
(A) enforce Sportradar’s rights under the Agreement;
(B) comply with legal obligations or the orders of competent authorities; and
(C) defend legal claims.
(d) Sportradar may use Aggregated Data (which may include Advertiser Data) during and after the Campaign Term to report about the performance of Sportradar’s services to third parties and for internal purposes such as analytics and to improve, benchmark and develop its internal products and services.
(e) Sportradar grants Advertiser a revocable, worldwide, non-transferable, non-assignable and non-sublicensable licence during the Campaign Term to use, in strict compliance with this Agreement, any Sportradar Data included in the Campaign Reports. Advertiser shall not disclose the Sportradar Data to any third party without the prior written consent of Sportradar.
9.3 Advertiser shall not edit, amend or modify any Tracking Code provided by, or otherwise made available (including through Sportradar Platform), without Sportradar’s prior written consent.
10 Confidentiality
10.1 Each Party acknowledges that by reason of its relationship to the other Party under this Agreement it may have Confidential Information, which value would be impaired if such Confidential Information were disclosed to third parties.
10.2 At all times, the Parties are obliged to maintain and protect the confidentiality of the Confidential Information of the other Party in the same way that either Party protects its own Confidential Information of a similar nature, but in no circumstances shall either Party fail to use its commercially reasonable efforts to protect the said Confidential Information.
10.3 This Confidential Information shall not be disclosed to third parties other than auditors and professional advisors subject to similar obligations of confidentiality unless otherwise provided for in this Agreement. Sportradar may also disclose this Agreement or parts of it to Partners subject to similar obligations of confidentiality when necessary to comply with Sportradar’s obligation under this Agreement or under any agreement between Sportradar and a Partner.
10.4 Affiliates and subcontractors as well as auxiliaries of Sportradar are not considered as third parties under this section.
10.5 The Parties agree not to use the Confidential Information for other purposes as for the purposes of the present Agreement unless otherwise provided for in this Agreement, except where the said Confidential Information moves into the public domain as the result of an act that is not from the recipient of the Confidential Information, or where the recipient can show that it became aware of it independently, prior to the date of the present Agreement. The recipient Party of the Confidential Information must make all necessary efforts to ensure that its employees and subcontractors to whom the Confidential Information is disclosed within the scope of this Agreement take the necessary precautions to safeguard and preserve the secrecy and the confidentiality of the Confidential Information.
10.6 Advertiser expressly acknowledges and agrees that Sportradar may, with consent from Advertiser, disclose the relationship hereunder to a Partner upon reasonable request and commercial necessity in accordance with advertising industry standards.
10.7 On explicit request at the termination of this Agreement, the Party that has received Confidential Information agrees to return to the Party that disclosed the same all the material provided by the latter, as well as all the copies made hereof.
10.8 In any event, the commitment to confidentiality shall remain beyond the Campaign Term for a period of five (5) years.
11 Changes to these IOGTC
11.1 Sportradar may make changes to these IOGTC at any time by giving 30 days’ written notice to Advertiser. The changes to the IOGTC will not apply retroactively.
12 Final Provisions
12.1 If this Agreement is entered between Advertiser and Sportradar AG, Feldlistrasse 2, 9000 St. Gallen, Switzerland, it shall be governed by and construed in accordance with the laws of Switzerland, excluding its conflicts of law provisions as well as excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and all actions or proceedings howsoever arising from or related to this Agreement shall be brought exclusively before courts having jurisdiction in St. Gallen, Switzerland.
12.2 If this Agreement is entered between Advertiser and Sportradar Solutions 150 South Fifth Street, Suite 400, Minneapolis, MN 55402, United States of America it shall be governed by and construed in accordance with the laws of the state of New York, USA, excluding its conflicts of law provisions as well as excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG); all actions or proceedings arising from or related to this Agreement shall be litigated exclusively in courts having jurisdiction within the State of New York.
12.3 This Agreement contains the entire agreement between the Parties in respect of the subject matter of this Agreement and supersedes and cancels all previous agreements, negotiations, commitments and writings between the Parties hereto in respect of the subject matter hereof. Any terms and conditions of the Advertiser shall explicitly be excluded and not applicable for the purpose of this Agreement.
12.4 The Parties agree that oral side agreements shall not be concluded, unless they are confirmed in writing. Furthermore, save as otherwise provided in the Agreement (for example in clause 11), any amendment of or modification to this Agreement shall be made in writing (including any amendment or modification of this clause). Save as otherwise stated in the Agreement, “writing”, “in writing” and “written” includes handwritten signatures, signatures produced by mechanical or digital means (such as by stamp, print, copy, scan, digitally scanned and stored signature inserted into digital document, etc.) as well as qualified electronic signatures. Also, for the avoidance of doubt, transmission/exchange in electronic format (for example scanned documents sent by email) do fulfill the form requirement. The written form requirement in this clause may only be waived by respecting the same written form requirement.
12.5 Sportradar may, at its sole discretion, use subcontractors for the fulfillment of its obligations hereunder.
12.6 Neither Party may assign to any third Party, transfer or otherwise dispose of this Agreement, any right or obligation therein or the Services without the prior written consent of the other Party, provided, however, that Sportradar may transfer and assign any or all of its rights and obligations hereunder to any Affiliate of Sportradar without the consent of Advertiser. Any purported or attempted assignment in violation of this paragraph shall be null and void.
12.7 All notices or other communications which are required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by prepaid air courier, sent by mail or sent by facsimile transmission (including by electronic transmission such as email) to the Party to be served at the address set out on the first page of the main bold of the Agreement, or such other address as either Party may have notified in writing to the other Party beforehand.
12.8 If any term of the Agreement is invalid or ineffective, this shall not affect the validity of the remaining terms of the Agreement. The invalid or ineffective term shall be reasonably replaced by a term that most closely reflects the intended purpose of the Agreement. The same applies in case of any gap and as regards the interpretation hereof.
12.9 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the Parties, or to authorize either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
12.10 Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect.
12.11 No terms or conditions of Advertiser’s invoice, purchase order or other administrative document (unless signed by authorized representatives of both Parties and expressly referencing that it amends this Agreement) will be effective as a modification of the terms and conditions of this Agreement regardless of Sportradar’s failure to object to such form.
12.12 If the performance of this Agreement by either party, or of any obligation under this Agreement, other than the payment of the Compensation, is prevented or materially restricted by reason of epidemic, pandemic, war, revolution, civil riot, disaster, acts of public enemies, blockade or embargo, strikes, proclamation, or any other act whatsoever, whether similar or dissimilar to those referred to in this section, which is beyond the reasonable control of the party affected (“Force Majeure Event”), such party shall, upon giving prior written notice to the other party, be excused from such performance to the extent such performance is prevented by a Force Majeure Event, provided that the party so affected shall use all commercially reasonable efforts to avoid or remove such causes of non-performances, and shall continue performance whenever such causes are removed.
ANNEX 1 – DEFINITIONS
Definitions
“Action” shall mean the action, as defined in the IO, triggering the obligation to pay CPA. For the avoidance of doubts, FTD, Registration and NDC are (without limitation) Actions.
“Ad” shall mean any advertisement, (i) provided by Advertiser to Sportradar; (ii) hosted by Advertiser in the Sportradar Platforms; (iii) created with Advertiser Data by Sportradar or a Sportradar Platform on behalf of Advertiser.
“Advertiser” shall mean the entity listed as “Advertiser” in the IO.
“Advertiser Data” shall mean data related to Campaigns, including the Ads or any other marketing content that is (i) shared via email by Advertiser for the provision of Managed Services by Sportradar; (ii) collected from Advertiser’s Properties through Tracking Code; and/or (iii) inputted by Advertiser in the Sportradar Platforms. Advertiser Data excludes this Agreement or any information related to the performance of the Services.
“Agreement” shall mean the IO, the IOGTC, the DPA (if applicable), and all the Annexes.
“Aggregated Data” shall mean data related to the Campaigns, including Advertiser Data, combined with similar data from campaigns of other clients of Sportradar and precludes identification, directly or indirectly, of the Advertiser.
“Affiliate” shall mean (i) any corporation or business entity of which fifty percent (50%) or more of the voting stock or voting equity interest are owned directly or indirectly by a Party; or (ii) any corporation or business entity which directly or indirectly owns fifty percent (50%) or more of the voting stock or voting equity interest of a Party; or (iii) any corporation or business entity directly or indirectly controlling or under control of a corporation or business entity as described in (i) or (ii).
“Annex” shall mean each of the annexes herein.
“Attribution Window” shall mean within:
– seven (7) days of an Ad being delivered to the device of an End User; and/or
– thirty (30) days of an End User clicking on an Ad.
“Calendar Year” shall mean a period of time that begins the day in which the Parties signed the IO and ends on 31 December of the same year.
“Campaign Performance” shall mean the amount of Impressions, clicks, Actions, or other applicable metric as applicable, delivered, shown, produced, clicked on, or viewed during a Campaign.
“Campaign Reports” shall mean information providing reasonable details of Campaign Performance
“Campaign Term” shall mean the period of time in which the Agreement in force, as defined in the IO.
“Campaigns” shall mean digital marketing campaigns, which may include placing the Ads in Inventory of third party publishers and related services, as specified in the IO or as set and/or executed by Advertiser through a Platform Account.
“Change of Control” shall be as defined in section 1124 of the UK Corporation Tax Act 2010, and the expression Change of Control shall be construed accordingly
“Compensation” shall mean remuneration to be paid by the Advertiser in exchange of each of the Services, as calculated in accordance with the Agreement.
“Confidential Information” shall mean information and materials concerning a Party’s business, plans, trade and business secrets, know-how, customers, user data, codes and products that are confidential, or could reasonably be deemed as confidential, including this Agreement or information about the performance of the Services.
“CPA” shall mean the Compensation to be paid by Advertiser each time an End User performs Action within Attribution Window, unless otherwise specified in Action.
“CPC” shall mean the Compensation to be paid by Advertiser each time an End User clicks on an Ad.
“CPI” shall mean the Compensation to be paid by Advertiser each time an End User installs Advertiser’s app within Attribution Window.
“CPM” shall mean the Compensation to be paid by Advertiser each time a thousand Impressions are delivered under the Agreement.
“DCP” or “DCO” shall mean a tool operated by Sportradar allowing the creation of personalized advertisement content based on contextual or historic data about a Property and/or End User.
“DCP Campaign” shall mean a Campaign agreed under a DCP IO or the DCP section of an IO.
“Direct Campaign” shall mean a Campaign agreed under a Direct Campaign IO or the Direct Campaign section of an IO.
“DPA” shall mean a Data Processing Agreement entered into by the Parties.
“Dynamic Creative” shall mean Ads created using the DCP.
“Game Stories Campaign” shall mean any Campaign agreed under a Game Stories IO or the Games Stories’ section of an IO
“End Users” shall mean internet users (i) referred to Advertiser’s Properties by the Services; and/or (ii) to whom Impressions or otherwise Ads have been shown pursuant to the Services;
“Feedback” shall mean any feedback, comments, and suggestions provided by Advertiser, or any other third party on behalf of Advertiser, to Sportradar regarding the Sportradar Assets or any other software and/or technology to which Advertiser has access under the Services.
“FTD” shall mean NDC.
“Gross Revenue” shall mean the value of the revenues generated by all End Users across all products offered by the Advertiser. Revenues generated would be equal to all (settled) bets less wins and in poker would be equal to the rake contributed through each qualified pot in cash ring games and/or the fees charged to customers to compete in poker tournaments.“Impression” shall mean provision of an Ad to a Partner.
“Infringing Content” shall mean any content that:
(a) violates or encourage violation of any applicable laws, regulations or advertising codes;
(b) infringes any rights (including without limitation any intellectual property or privacy rights) of any third party;
(c) be, or contain any material which may be reasonably considered to be, harmful, offensive, abusive, obscene, unethical, indecent, immoral, threatening, or defamatory; pornographic, obscene or contain sexually explicit images or activity;
(d) promote or contain links to, tobacco, alcohol or weapons; or
(e) promote, deliver or contain links to malware including but not limited to ‘viruses’, ‘Trojans‘ and ‘worms’;
“Inventory” shall mean media space available for advertisement purposes in Properties.
“IO” shall mean an insertion order subject to the IOGTC entered into by the Parties.
“IO Self-Service” shall mean any IO where Sportradar grants self-service access to Sportradar DSP.
“IOGTC” shall mean the Insertion Order General Terms and Conditions including any annex herein.
“Minimum Deposit” shall mean the value defined as such in the IO. In the absence of such definition in the IO, the Minimum Deposit shall be 1 USD (US dollar) (or the equivalent to 1 USD in any other currency).
“NDC” shall mean the event of an End User:
(i) starting the registration process in order to create a personal account with Advertiser within Advertising Window; and
(ii) making a deposit equal or superior to Minimum Deposit with Advertiser (whether or not within Attribution Window).
“Official League Data” shall mean shall mean data (including NFL data) provided to the media industry as acquired by a data supplier (such as Sportradar) from a professional and/or amateur sports league, organization, or federation; such Official League Data, under this Agreement, shall be designated as such hereunder and may be updated from time to time by Sportradar.
“Official League Data Widget” shall mean a Widget displaying Official League Data.
“Partner” shall mean third parties including, without limitation, network providers, owners of inventory and other companies providing digital marketing services in connection with the Agreement.
“Party” shall mean each of Sportradar and Advertiser, referred collectively as “Parties”
“Platform Account” shall mean an account in a Sportradar Platform only accessible through Platform Credentials to persons other than Sportradar and its subcontractors.
“Platform Credentials” shall mean information (such as login details) allowing access to Platform Account.
“Platform Usage Fee” shall mean 12.5% of the costs of the inventory bought by Sportradar (including related costs such as SSP fees) in connection with a Programmatic Managed Campaign
“Programmatic Managed Campaign” shall mean any Campaign agreed under a Programmatic Managed Service IO or under the Programmatic Managed Service section of an IO.
“Programmatic Self-Service Campaign” shall mean a Campaign agreed under a Programmatic Self-Service IO or under the Programmatic Self-Service Section of an IO.
“Property” shall mean a website, a mobile site, a mobile app or any other media channel where Ads can be placed.
“Registration” shall mean the event of an internet user:
– starting the registration process in order to create a personal account with Advertiser within Advertising Window; and
– successfully creating a personal account with Advertiser (whether or not within Attribution Window).
“Services” shall mean each of the services listed as such in the IO which may include the delivery of Campaigns.
“Sportradar” shall mean the entity listed as “Sportradar” in the IO.
“Sportradar Assets” shall mean the Sportradar Platforms and Sportradar Data.
“Sportradar Data” shall mean (i) data about End Users’ digital activity gathered in connection to the Services, excluding Advertiser Data; (ii) information about the performance of the Services; (iii) bid requests related to the Services; and (iv) information made available by Sportradar or any Partner through any Sportradar Platform.
“Sportradar DSP” shall mean a platform operated by Sportradar allowing the setup of programmatic Campaigns and control Campaign settings such as budget, duration, targeted geo-location and any other available targeting measurements within the Campaign and line items.
“Sportradar Platforms” shall mean web-based technology assisting the Advertiser in its digital marketing activities. To this date, the Sportradar Platforms are the Sportradar DSP, the DCP and the Marketing Cloud (each of them a “Sportradar Platform”).
“Sportradar Marketing Cloud” shall mean a platform operated by Sportradar providing information and some functionalities related to the Services which may include inventory availability, Campaign Reports, and Tracking Code.
“Taxes” shall mean any tax including but not limited to tax on royalty payments, digital services tax, source tax, VAT, consumer taxes, GST (or any similar tax) levied on the Advertiser in the country where the Advertiser is resident, receives the Services provided hereunder, or provides its services.
“Territory” shall mean any country, state, territory or region (i) listed as Geos or Territory in the IO; (ii) in which Sportradar delivers the Ads as agreed by the Parties in writing (e-mail sufficient); and/or (iii) targeted by Advertiser through Sportradar DSP.
“Tracking Code” shall mean tags, pixels, SDKs, javascripts or any other similar tracking technology.
“Widget” shall mean a JavaScript-based application displaying sports content.
“Widget Campaign” shall mean a Campaign agreed under a Widget IO or the Widget section of an IO.
“Widget Inventory” shall mean media space available for advertisement purposes in Widgets displayed in Properties.
ANNEX 2 – PRODUCT-SPECIFIC PROVISIONS
1. Direct Campaigns
a. This clause 1 shall apply to any Services agreed under a Direct Campaign:
i. Sportradar shall use its commercially reasonable endeavors to deliver Campaigns in the Inventory of Partners as agreed in the Direct Campaign IO.
ii. Advertiser represents, warrants and undertakes that it shall comply at all times with any third party policies or guidelines shared by Sportradar in writing (e-mail sufficient), including the guidelines and policies of the publishers listed in the Direct Campaign IO
2. Programmatic Managed Service
a. This Clause 2 shall apply to any Programmatic Managed Campaign:
i. Sportradar shall use its commercially reasonable efforts to deliver Programmatic Managed Campaigns with the Sportradar DSP following the Campaign specifications agreed between the Parties in the IO.
ii. Advertiser acknowledges that Sportradar shall not be liable to Advertiser or any of its clients or Affiliates should any Programmatic Managed Campaign fail to meet any Key Performance Indicator.
iii. Compensation US:
1. Sportradar shall invoice Compensation to Advertiser monthly based on media delivered in connection with any Programmatic Managed Campaigns that target the US (or any State therein) (a “US Programmatic Managed Campaign”).
2. The total Compensation payable by Advertiser during the Campaign Term of a US Programmatic Managed Campaign shall not exceed the Total Cost stated in the IO unless otherwise agreed by the Parties in writing (e-mail sufficient).
iv. Compensation (non-US):
1. Compensation in Programmatic Managed Campaigns that do not target the US (or any State therein) shall mean the result of adding Programmatic Media Spend and Managed Service Fee. Programmatic Media Spend shall include:
a. the costs of the inventory bought by Sportradar (including related costs such as SSP fees) in connection with a Programmatic Managed Campaign; and
b. Platform Usage Fee.
2. Any Fixed Managed Service Fee agreed in the IO is subject to Compensation being equal or higher to Minimum Budget. If Compensation is lower than Minimum Budget, Sportradar will invoice, and Advertiser shall pay within ten (10) days of the date of any such invoice, the difference between Fixed Managed Service Fee and Tiered Margins Managed Service Fee.
v. Advertiser represents, warrants and undertakes that it shall comply at all times with:
1. BIDSWITCH’s online technical specifications and sell side policies relating to the use of the BIDSWITCH Platform, available at www.BIDSWITCH.com/bidswitch-policy
2. Taboola’s advertising policies (available at: www.taboola.com/advertising-policies) where it instructs Sportradar to deliver Campaigns through Taboola.
3. Any other third party policies shared by Sportradar in writing (e-mail sufficient) from time to time.
3. Programmatic Self-Service
a. This Clause 3 shall apply to any Programmatic Self-Service Campaign.
i. Subject to any other provision of this Agreement, Sportradar shall share Platform Credentials allowing Advertiser to access and use the Sportradar DSP during the Campaign Term to execute programmatic Campaigns and autonomously set its parameters including their duration, geo-targeting and Programmatic Media Spend.
ii. Programmatic Media Spend shall mean the costs of the inventory bought by Sportradar. (including related costs such as SSP fees) in connection with a Programmatic Self-Service Campaign.
iii. Advertiser shall be responsible for any activity performed with the Platform Credentials, including, but not limited to, any Campaign set or executed through the Platform Credentials.
iv. Compensation:
1. Compensation shall mean the result of adding Programmatic Media Spend and Self-Service Fee.
2. Programmatic Media Spend shall include: the costs of the inventory bought by Sportradar (including related costs such as SSP fees) in connection with a Programmatic Self-Service Campaign;
3. Any Fixed Self-Service Fee agreed in the IO is subject to Compensation being equal or higher to Minimum Budget. If Compensation is lower than Minimum Budget, Sportradar will invoice, and Advertiser shall pay within ten (10) days of the date of any such invoice, the difference between Fixed Self-Service Service Fee and Tiered Managed Self-Service Service Fee.
v. If scheduled maintenance of the Sportradar Platforms is required, Sportradar will make reasonable efforts to i) give advance notice and ii) schedule the maintenance outside working hours in Austria.
vi. Advertiser is entitled to receive an introduction to the Sportradar Platforms free of charge within the first thirty (30) days of the Term, for a maximum of an accumulated eight (8) working hours.
vii. Advertiser acknowledges that Sportradar may set limits on the parameters that Advertiser can use to set and execute Programmatic Self-Service Campaigns. In particular (but not exclusively), Sportradar may restrict the targeting geo-locations available in the Sportradar DSP and set maximum limits to Programmatic Media Spend.
viii. Advertiser acknowledges that Sportradar may deny access to Platform Account after Campaign Term;
ix. Advertiser represents, warrants and undertakes that it shall comply at all times with:
1. BIDSWITCH’s online technical specifications and sell side policies relating to the use of the BIDSWITCH Platform, available at www.BIDSWITCH.com/bidswitch-policy
2. Taboola’s advertising policies (available at: www.taboola.com/advertising-policies) if Advertiser uses the Sportradar DSP to deliver Campaigns through Taboola.
3. Any other third party policies shared by Sportradar in writing (e-mail sufficient) from time to time.
4. DCP
a. This Clause 4 shall apply in respect of any DCP Campaign in which the Parties have agreed in writing to use the DCP.
i. Subject to Advertiser complying with its obligations under this Agreement, Sportradar will use the DCP in order to create Dynamic Creatives with Advertiser Data. Sportradar may also use data or content that is not Advertiser Data to create Dynamic Creatives where agreed between the Parties in writing (e-mail sufficient) or under Sportradar’s reasonable discretion in the absence of any such agreement.
ii. Sportradar will use Dynamic Creatives in connection with Campaigns as agreed between the Parties in writing (or under Sportradar’s reasonable discretion in the absence of any such agreement).
iii. Advertiser acknowledges that the creation of Dynamic Creatives requires Advertiser Data. Therefore, Advertiser shall implement Tracking Code, and share Advertiser Data, as agreed by the Parties in writing (or as reasonably indicated by Sportradar’s in the absence of any such agreement).
iv. Advertiser explicitly acknowledges that it has secured all rights (including trademarks or other intellectual property rights) for Sportradar to use any content (including Advertiser Data) included in Dynamic Creatives in compliance with this Agreement.
5. Widget
a. This Clause 5 shall apply to any Services agreed under any Widget Campaign.
i. Sportradar will use its commercially reasonable efforts to deliver Campaigns in Widget Inventory following the Campaign specifications agreed by the Parties in writing (e-mail sufficient)
ii. Advertiser shall not perform any act, or include any content in the Ad or related landing page, that misrepresents any association between Advertiser and any third party which content is included in the Widget(s), Sportradar or any Partner involved in the delivery of the Ads.
iii. In relation to any Official League Data Widget licensed through this Agreement, Advertiser represents, warrants, and covenants that it shall have, and maintain during the License Term, all necessary rights, licences, consents, permissions and business permits (including approvals from the relevant US sports leagues and/or their designated licensees (i.e., Sportradar)) to display Official League Data in Properties. Unless such rights are granted to Advertiser under this Agreement or via a standalone writing, Advertiser shall promptly provide evidence of its compliance with this clause on Sportradar’s request. Advertiser agrees to promptly inform Sportradar in writing of any changes to its maintenance of any required necessary rights, licences, consents, permissions and business permits.
iv. In relation to any Official League Data Widget, Advertiser shall comply at all times with the Official Media Data Addendum, available at:
https://developer.sportradar.com/Official_Media_Data_Addendum
