ROKU TERMS AND CONDITIONS
FOR PURCHASE OF PROMOTIONAL PLACEMENT
By placing an order ("Insertion Order”) for advertising on the Roku, Inc. (“Roku”) website, the Roku platform or in a Roku customer email distribution arrangement, in the packaging inserts or in a Roku newsletter, Advertiser and its Agency, if applicable, each agree to the following terms and conditions with respect to such Insertion Order (collectively, "Terms"):
1 . Insertion Order, Optimization and Ad Servers.
Roku agrees to deliver, and Advertiser and/or its Agency each agree to pay, for the promotional placement specified on the applicable Insertion Order (“Promotional Placement”) which Insertion Order is incorporated herein by this reference, according to the rates specified in the Insertion Order and subject to these Terms. Promotional Placements specified on the Insertion Order may be adjusted from time to time, by agreement of the parties.
2. Ad Servers and Counting.
Where the particular Promotional Placement at issue involves a specific number of impressions delivered, Roku's applicable ad server(s) shall be the official counter(s) for determining the number of impressions delivered.
If actual inventory delivered with respect to a particular Promotional Placement falls below guaranteed levels in the Insertion Order according to Roku's applicable ad server counts by more than 10%, and/or if there is an omission of any specified Promotional Placement, Advertiser and/or its Agency and Roku will make an effort to agree upon the conditions of a makegood, alternative Promotional Placement. If no makegood Promotional Placement can be agreed upon, Advertiser and/or its Agency will be entitled to receive a credit equal to the value of the under-delivered portion of the Insertion Order for which it was invoiced. If Advertiser and/or its Agency made a cash pre-payment to Roku specifically for the Insertion Order for which under-delivery applies, and if Advertiser and/or its Agency is current on all amounts owed to Roku, Advertiser and/or its Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the Insertion Order. Alternatively, should Advertiser or its Agency owe any outstanding sums to Roku, Advertiser or its Agency shall be entitled to deduct the credit due from such sums owed. Makegoods are not available (a) when under-delivery or omission of an advertisement is attributable to Advertiser's and/or Agency's (i) delayed, incorrect or incompatible Ad Materials (as defined below) or (ii) failure to follow applicable Policies (as defined in Section 4 below), (b) for failure to deliver impressions according to any specific daily or weekly distribution unless otherwise expressly agreed, (c) for impressions marked on the Insertion Order or agreed to as "estimated" or "not guaranteed", (d) for sponsorship, exclusive or similar placements, or (e) for preemptive placements and/or impressions or if inventory is otherwise preempted by Roku. This section sets forth the sole and exclusive remedy for any failure of Roku to fulfill its obligations under any Insertion Order.
(b) Bonus Impressions. Advertiser and/or its Agency shall not be charged by Roku for any additional advertisements above any level guaranteed in the Insertion Order.
Either party may terminate an Insertion Order at any time if the other party is in material breach of its obligations hereunder that is not cured within 10 days after written notice thereof from the non-breaching party. Otherwise, Insertion Orders, once signed, are non-cancellable.
4. Ad Materials and Late Creative.
Artwork, copy, other content, active URLs and other components of the Promotional Placements (collectively, "Ad Materials") must comply with Roku's criteria and specifications as determined by Roku from time to time for its applicable website(s) (collectively, the "Policies"), as updated from time-to-time in Roku's discretion. Ad Materials must be received at least five (5) business days prior to the scheduled start date of the Promotional Placement. If Ad Materials are not received within such timeframe, or if provided incorrectly or inconsistent with the Policies, then guaranteed impressions and Roku's obligations may be reduced pro-rata for the period of time that reserved space was not filled without affecting Advertiser's financial responsibility for all impressions ordered and inventory reserved. All Ad Materials are subject to Roku's approval.
5. Payment Terms and Taxes.
Roku will bill Advertiser and/or Agency at the address provided or as listed on the Insertion Order. Payment shall be made in advance unless credit arrangements acceptable to Roku have previously been made in writing, in which event payment shall be made no later than 30 days after the date of Roku's invoice. Roku reserves the right to suspend or cancel credit arrangements at any time with or without notice for whatever reason. Interest charges and collection fees may be applied to past due amounts. Fees on the Insertion Orders are exclusive of all taxes. Advertiser and/or Agency shall be responsible for payment of all taxes, duties and similar charges assessed in connection with the Services or on any payments made by Advertiser hereunder, excluding taxes on Roku's net income.
Agency is acting as agent for a disclosed principal (i.e., the Advertiser named on the purchase contract or media order) and Agency (unless otherwise specified in writing) will act as agent for making payment on all invoiced amounts hereunder. Advertiser and Agency shall be jointly liable for the payment of sums due hereunder, but Roku agrees to look initially to Agency for the payment of sums due hereunder, unless Agency fails to timely remit payment or becomes insolvent. Advertiser shall be liable to Roku and not to Agency on all unpaid billings, including all applicable taxes, for services rendered by Roku hereunder (excluding advertising agency commissions). If Roku has not received payment from Agency within 45 days from the due date of the invoice, Roku may consider the invoice to be delinquent and may invoice or contact the Advertiser directly for payment after notifying the Agency of its intention. Nothing herein contained relating to the payment of invoiced amounts by Agency shall be construed so as to relieve Advertiser of, or diminish Advertiser's liability for breach of its obligations hereunder. If the purchase contract or media order is with a media buying service, all references herein to Agency shall apply to the media buying service.
Advertiser hereby represents and warrants to Roku that Roku and its licensees and/or authorized distributors have the right to display, exhibit, distribute and publish (collectively, "Use") the Ad Materials in the form delivered and manner Used without infringing or violating the rights of any party or of any law, rule or regulation. Advertiser agrees, at its own expense, to indemnify, defend and hold harmless Roku, its licensees and/or authorized distributors, and their employees, officers, directors, representatives, agents and affiliates, from and against any and all claims (including but not limited to, claims of trademark or copyright infringement, libel, defamation, breach of confidentiality, privacy or data protection violation, false, deceptive or misleading advertising or sales practices), demands, suits, actions, proceedings, damages, losses, costs and expenses (including reasonable attorneys' fees and costs) and other liabilities of any kind whatsoever arising out of or related to (a) Roku’s Use of any advertisement provided by Advertiser, (b) the Ad Materials or any matter or thing contained in any advertisement, and/or (c) any material of Advertiser in which users can link through to any advertisement. If Agency is the party placing an Insertion Order for the benefit of its client, then client and Agency shall each be considered the Advertiser for purposes of this section (and shall be jointly and severally liable and responsible for fulfilling indemnification obligations), and if an Agency has entered into an Insertion Order on an Advertiser’s behalf, Agency represents and warrants that it has the authority, as agent, to bind its client to these Terms and the Insertion Order.
7. Warranty Disclaimer. ROKU MAKES NO WARRANTY OF ANY KIND WITH RESPECT TO ITS WEBSITES OR SERVICES TO BE DELIVERED HEREUNDER AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ALL SERVICES ARE PROVIDED ON AN AS IS BASIS WITHOUT GUARANTEE. The provisions of this Paragraph 7 shall survive the expiration or termination of these Terms and any Insertion Order.
8. Limitation of Liability. ROKU SHALL NOT BE LIABLE TO THE ADVERTISER, ITS AGENCY OR ANY THIRD PARTY UNDER OR IN RELATION TO THESE TERMS OR ANY INSERTION ORDER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE, UNDER ANY THEORY OF LAW OR EQUITY, AND WHETHER OR NOT ROKU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ROKU’S LIABILITY UNDER OR IN RELATION TO THESE TERMS OR ANY INSERTION ORDER EXCEED THE FEES ACTUALLY PAID TO ROKU FOR THE ADVERTISEMENT GIVING RISE TO SUCH LIABILITY.
(a) Roku shall not be liable to Advertiser or its Agency for delay or default in the performance of the Promotional Placement contained within an Insertion Order or these Terms if caused by conditions beyond its control, including but not limited to, any act of God, governmental authority, war, terrorist act, riot, labor stoppage or slowdown, fire, flood, severe weather, earthquake, accident, telecommunications or network failures, failure of the Internet, or electrical outages. These Terms, together with the Insertion Order, shall be governed and construed in accordance with the laws of the state of California, without regard to its conflicts of law principles and as if entered into by residents of California. The parties agree to submit to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California with respect to any legal proceeding arising out of the Insertion Order or Terms, waiving all defenses with respect to jurisdiction, forum and venue. These Terms and the Insertion Order are the complete and exclusive agreement between the parties with respect to the subject matter and supersede any prior or contemporaneous agreements, negotiations and communications, whether written or oral, between the parties regarding such subject matter. The Terms and Insertion Order may only be modified, or any rights under it waived, by a written agreement of the parties. Roku will not be bound by any terms or conditions, printed or otherwise, appearing on any purchase order, copy instructions, contract or other documents submitted by Advertiser or its Agency, or expressed orally. These Terms and the Insertion Order are specifically between and for the benefit of Roku and Advertiser, and no other person or entity whatsoever (including without limitation, Advertiser's Agency) shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of these Terms or the Insertion Order as a third party beneficiary, assignee, transferee or otherwise. All obligations and liabilities which by their nature are intended to survive shall survive termination or expiration of these Terms and the Insertion Order for any reason.