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Skillz Terms
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TERMS & CONDITIONS This Agreement by and between Skillz (“Advertiser” or “Skillz”) and the Media Company (as defined in the IO chart above) is governed by the IAB/AAAA’s STANDARD TERMS AND CONDITIONS FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS (v3.0) (the “IAB Agreement”) seen here https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf. The IO, together with the IAB Agreement and these Terms & Conditions, comprise the entire agreement between the parties with respect to the subject matter (together, the “Agreement”) and together supersede any other agreements or understandings to date. Capitalized terms used but not defined herein will have the meanings set forth first in the IO, second in these Terms & Conditions, and last in the IAB Agreement. If the IO conflicts with the IAB Agreement, then the IO language will control and be binding. If these Terms & Conditions conflict with the IAB Agreement, then these Terms & Conditions will control and be binding. 1. Representations and Warranties of Advertiser. Skillz represents and warrants that the person signing on behalf of the entity listed on the signature page is authorized to enter into this Agreement and meet all the obligations and grant all permissions and licenses provided in this Agreement on its behalf. Except as expressly set forth herein, Skillz makes no other representation or warranty, whether express or implied, including, but not limited to, the accuracy of any information provided, the performance or functionality of any ad technology, network failures, and/or any third-party products and services or software programs. 2. Representations and Warranties of Media Company. Media Company represents, warrants and covenants that: 2.1. the person signing on behalf of the entity listed on the signature page is authorized to enter into this Agreement and meet all the obligations and grant all permissions and licenses provided in this Agreement on such entity’s behalf. 2.2. it will run the Campaign and provide the Services detailed in the Accepted Territories only (As seen in Exhibit A); 2.3. it, and the Services will and do comply with all applicable laws, regulations, and industry guidelines (including, without limitation, those set forth by the Federal Trade Commission (As seen in Exhibit B), all local equivalents and any self-regulatory bodies of which Media Company is a member). These duties extend to ensuring socially responsible messaging, age and location verification, and self-exclusion requests, as applicable, for any and all Ads, Advertising Materials, Campaign Content (defined below in Section 11), and any other communications made by Media Company on behalf of or in furtherance of Skillz’s interests and business; 2.4 it will not use the following words or phrases in the Ads, Advertising Materials or Campaign Content: gambling, wagering, betting, guessing, earning, addicting, luck, chance, fast cash, instant cash, or real money (including all variations and translations therein); 2.5. Campaign Content will not be false, deceptive, misleading, unethical, defamatory, threatening, harassing, harmful, abusive, tortious, vulgar, obscene, pornographic, invasive of another's right to privacy, invasive of another’s right to publicity, subversive, hateful, or racially, ethnically or otherwise objectionable or contrary to public interest, or could reasonably be determined to tarnish the goodwill of Skillz; 2.6. notwithstanding anything to the contrary in the IAB Agreement, it shall not use any Skillz IP or any data derived from or related to Skillz users for the benefit of any third party and will only use the foregoing for the sole benefit of Skillz; and 2.7. it will disclose to Skillz in writing, at Skillz’s request, the actual verifiable cost to purchase the inventory. 3. Invalid Activity. 3.1. Skillz reserves the right to not compensate, to offset amounts owed, or to void payment for any Invalid Activity (defined below in Section 11) in its sole discretion. 3.2. Media Company may dispute a claim of Invalid Activity within fourteen (14) days of being notified by Skillz of the same, which will simultaneously trigger a responsibility for Media Company to conduct an immediate, good faith investigation regarding the discrepancy. In the event that Media Company’s investigation results in the finding of a discrepancy, the parties will promptly meet and confer in good faith in order to reconcile and resolve the discrepancy. If the parties fail to reconcile the discrepancy within ninety (90) days of Media Company providing to Skillz the results of its investigation, Skillz will maintain the right to not compensate, to offset amounts owed, or to void payment for the Invalid Activity without any liability whatsoever. 4. Ownership and License 4.1. Ownership of Skillz IP. Skillz retains all of its right, title and interest in Skillz IP. To the extent Media Company acquires any rights, title or interest in or to the Skillz IP, Media Company agrees to and does hereby assign to Skillz all rights, title and interest in and to the entirety of the Skillz IP. Media Company will take (and will cause all personnel to take) all actions necessary and/or requested by Skillz to confirm and perfect all Skillz’s right, title and interest in and to Skillz IP. Media Company will deliver a copy of any Skillz IP to a location specified by Skillz immediately upon request. 4.2. Work Product. Media Company agrees to and does hereby assign to Skillz all of Media Company’s right, title and interest (including all IPR) in and to the Work Product (defined below in Section 11). 4.3. License to Skillz IP. During the Term, Skillz hereby grants to Media Company a non-exclusive, revocable and royalty-free license in the Accepted Territories to Skillz IP, with the right to grant and authorize sublicenses only to its approved subcontractors, to use, perform, display, copy, modify, and create derivative works of the Skillz IP, in each case solely to the extent necessary for Media Company to perform the Services under this Agreement. No other license is granted, whether express, implied, by estoppel, or otherwise and Skillz and its licensors hereby reserve all rights not expressly granted herein. For the avoidance of doubt, any modifications beyond resizing must be expressly approved by Skillz. 4.4. Restrictions: 4.2.1. Media Company may not (i) use, reproduce, distribute, adapt, modify and create derivative works of, perform or display the Skillz IP on any advertising platform, app store page or website other than locations or mediums expressly specified in this Agreement; and (ii) repurpose Skillz IP to serve other clients in any manner whatsoever. 4.2.2. Without limiting Media Company’s obligations, all Work Product, including advertising content such as banners, videos, posts, and audio content created by Media Company are subject to approval by Skillz and cannot be published or shared without Skillz’s prior written consent. Skillz reserves the right, in its sole discretion, to reject any advertising content that it deems not to have met relevant content, accuracy, brand, or FTC guidelines (As seen in Exhibit B). 5. Confidentiality. Without limiting Section XII of the IAB Agreement, both parties will keep terms of the Agreement, including the existence of the Agreement, confidential for the duration of the term of the Agreement and for a period of one (1) year following termination. 6. Privacy and Compliance with Law. The following is added as a new section (g) to Section XII of the IAB Agreement: Media Company acknowledges that it acts as a service provider as defined by the California Consumer Protection Act ("CCPA”), and agrees that it will not retain, use, disclose or expose any personally identifiable information or other Personal Data provided to it for any purposes other than for the specific purpose of performing the services under this Agreement, including, but not limited to any act or omission of Media Company or any of its agents, subcontractors or employees or any disclosure or exposure of personally identifiable information or other private information from Media Company’s computers, systems or servers, whether such personally identifiable information is hashed, anonymized encrypted or otherwise. 7. Indemnification. In addition to the mutual indemnification provisions and procedures detailed in the IAB Agreement, Media Company will defend and hold harmless Skillz from any Claim, Loss, liability, lawsuit, damages or expenses (including reasonable attorney’s fees) arising out of (i) the use of the Skillz IP under this Agreement or (ii) any third party claim, suit or proceeding by any end user or recipient of advertising relating to Media Company’s breach of Section 6 (Privacy and Compliance with Law). 8. Limitation of Liability. In no event will: (a) either party be liable to the other or any third party for any lost profits, loss of business, lost data or equipment downtime or for any consequential, indirect, exemplary, special or incidental damages, arising from or relating to the subject matter of the agreement, regardless of the cause of action, even if such party has been advised of the possibility of such damages; and (b) Skillz’ total liability of all kinds (to the greatest extent permitted by law) arising out of or related to the subject matter of the Agreement, regardless of the forum and regardless of whether any action or claim is based on contract, tort or otherwise, exceed the total amount paid by Skillz to Media Company in the six months immediately preceding the first event giving rise to the claim (determined as of the date of any final judgment in an action). 9. Termination. Any and all provisions and obligations contained in this Agreement which by their nature or effect are required or intended to be observed or performed after termination of this Agreement will survive the expiration or termination of this Agreement and will remain binding upon and for the benefit of both parties. Upon any termination of expiration of this Agreement: (a) Media Company will delete or destroy any Confidential Information, including any and all Performance Data, Collected Data or User Volunteered Data; and (b) Skillz will only be responsible for payment of any Services received and accepted prior to the effective date of termination or expiration. 10. Miscellaneous. Except as expressly set forth herein, no modifications to this Agreement will be effective unless signed by duly authorized representatives of the parties. Except as explicitly set forth herein, neither party nor any sublicensees will use the name, logo or any marks of the other for publicity purposes without prior written consent of the other. Media Company will, for a minimum of 2 years following termination of this Agreement, maintain accurate, complete and up-to date records in the ordinary course of its business sufficient to enable Skillz to verify Media Company’s compliance with this Agreement. Upon Skillz’s request Media Company will grant Skillz or its agents reasonable access to examine and audit Media Company’s books and records related to this Agreement solely to the extent necessary to confirm compliance with this Agreement. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit, signed, written waiver. If any provision of this Agreement is illegal or unenforceable, such provision will be severed from this Agreement and all other provisions will remain in full force and effect. Headings used in this Agreement are for reference purposes only and should not be used for interpretation of surrounding material. This Agreement is the product of negotiations between the parties hereto represented by counsel and any rules of construction relating to interpretation against the drafter of an agreement shall not apply to this Agreement and are expressly waived. Media Company may not assign this Agreement or any of its rights or obligations hereunder without Skillz’s express written consent, except that either party may assign this Agreement to the surviving party in a merger or that party into another entity or in an acquisition of all or substantially all of that party’s assets. Except to the extent forbidden in this Section, this Agreement will be binding upon and will inure to the benefit of the parties’ respective successors and assigns. The parties may execute this Agreement in one or more counterparts, each of which is an original, and all of which, taken together, constitute one agreement between the parties. The blanks in section XIV(d) of the IAB Agreement are considered completed with “California” and “San Francisco County,” respectively. 11. Definitions. “Aggregated” means a form in which data gathered under the IO is combined with data from numerous campaigns of numerous advertisers and precludes identification of Skillz or any Skillz user, whether directly or indirectly by reference to an identifier such as a name, identification number, online identifier or one or more factors specific to a user’s identity (e.g. “Personal Data”). “Campaign Content” means all advertising, promotional and other content and material provided by Skillz to Media Company for the purposes of the Campaign. “Confidential Information” or “CI” has the meaning set forth in Section XII of the IAB Agreement. For clarity, Skillz CI includes any Personal Data of Skillz users provided to Media Company either directly by Skillz or through its traffic verification tool. “Intellectual Property” or “IP” means: (a) any works of authorship, including, without limitation the Advertising Materials, Custom Material, and other creative assets; (b) proprietary and confidential information (including the CI of Skillz and Media Company); including technical data and customer and vendor lists, trade secrets, know-how, and techniques; (d) databases, data, compilations, data collections and technical data; (e) all derivative works, enhancements and modifications thereto; and (g) all IPR for any of the foregoing. “Intellectual Property Rights” or “IPR” means any and all copyrights, moral rights, common law rights, rights in trade secrets, and technical know-how, database rights, trademark rights, trade dress rights, logos, and any other proprietary rights related to IP in any jurisdiction of the world existing now or in the future, and any and all applications and registrations therefor. “Invalid Activity” will include, but is not limited to impressions, clicks, installs, deposits or other actions arising from duplicate IP addresses, high click volume IP addresses, invalid install receipts, territories, regions, devices, operating systems not permitted in the relevant campaign per the IO, SDK spoofing, unusual click to install time, click spamming, click flooding, clicks not arising from user action, click injection, ad stacking, attribution signals from anywhere other than the ad itself, non-permitted incentivized traffic, and such other activities as may be mutually agreed by the parties (email sufficient). “Skillz IP” means any and all CI, and IP: (a) owned or licensed by Skillz; (b) required to be assigned to Skillz under this Agreement, or any other agreement; (c) disclosed or otherwise provided by or on behalf of Skillz in connection with this Agreement, or otherwise for or in connection with any Services; or (d) that is a derivative, improvement, modification, enhancement, or addition to any of the foregoing. “Work Product” means any derivative works created by, or any feedback or suggestions made by Media Company that is based on or using any Skillz IP. * * * EXHIBIT A Skillz Inc - UA Geo Restrictions [last updated 25 Sep 2023] UA campaigns should run only in these 4 countries (US, Canada, UK & Australia). Any new RoW country for UA needs permission from UA head / others, as we have seen low LTV & retention from other geo users in 2021-2022. USA: Eligible USA States (only below listed states should be included in the campaign) Alabama, Alaska, California, Colorado, Florida, Georgia, Hawaii, Idaho, Indiana, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming, Also Washington D.C., Tennessee, Montana, Arizona, & South Carolina *Indiana and Maine should not be targeted for card games ie 21 Blitz, Solitaire Cube, Spades Cash, Play 21. *New Jersey should not be targeted for Dominoes Gold The following (illegal) 5 states should never be targeted for any game: Arkansas, Connecticut, Delaware, Louisiana, South Dakota Australia: Only the following territories should be targeted: ACT, New South Wales, Northern Territory, South Australia, Tasmania, Western Australia; The following territories should never be targeted: Queensland, Victoria Other restrictions: Samsung Galaxy Store Campaigns should not be launched outside the US as we are not authorized to run any Android campaigns outside the US for Galaxy Store. Facebook / Meta campaigns can only run in the US & AU. *These are not approved to run in Canada & the UK. Prohibited Countries: The following (illegal) countries should never be targeted Afghanistan, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, China, Congo (the Democratic Republic of the), Côte d'Ivoire, Croatia, Cuba, Cyprus, Czechia, Egypt, Estonia, France, French Guiana, French Polynesia, French Southern Territories (the), Greece, Hungary, Indonesia, Iran (Islamic Republic of), Iraq, Italy, Japan, North Korea, Latvia, Lithuania, Macedonia (the former Yugoslav Republic of), Malaysia, Malta, Montenegro, Myanmar, Nigeria, Pakistan, Poland, Portugal, Romania, Russian Federation (the), Serbia, Slovakia, Slovenia, Sudan (the), Syrian Arab Republic, Turkey, Ukraine, Vietnam [ae], Zimbabwe EXHIBIT B Federal Trade Commission Compliance Affiliates must comply with the Federal Trade Commission's (the "FTC") Guides Concerning Endorsements and Testimonials in Advertising: https://www.ftc.gov/legal-library/browse/federal-register-notices/16-cfr-part-255-guides-concerning-use-endorsements-testimonials-advertising For more information on the Endorsement Guides, see The FTC's Endorsement Guides: What People Are Asking https://www.ftc.gov/business-guidance/resources/ftcs-endorsement-guides-what-people-are-asking
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