MASTER SERVICES AGREEMENT
a. Scope. Subject to the terms of the Agreement, Company and/or its affiliates will perform certain software based services including (i) the creation and placement of Internet advertising content based on Customer Information (as defined below) or materials (“Ads ”); and (ii) enabling views of certain data about the delivery of, and interactions with, Ads via the System (as defined below) (collectively, “ Services”) for Customer. “System” shall mean any and all computer hardware, software, APIs, websites, mobile applications, devices, servers, or other related systems under the control of Company and containing the underlying software used to provide the Services, including, but not limited to, the Company’s Customer dashboard. Customer acknowledges that the Services are built to function in conjunction with the Decibel Media, Inc. (“Decibel”) digital advertising platform. As such, Customer shall be required to comply with certain Decibel access, usage and data processing requirements as set forth in greater detail herein.
b. Reporting. The System tracks media impressions, clicks, conversions, and other data which go into the reports delivered by Company hereunder, as well as the basis for calculating applicable Fees (as defined below). The parties acknowledge that when comparing impression, click, conversion, and other data reported by System with data reported by a third party system, there may be discrepancies, including, but not limited to, discrepancies resulting from differences in counting methodologies, attribution methodologies, fraud detection and fraud elimination methodologies, and types and usages of pixel placement or other tracking technologies, the presence of third party redirects, differences in time zones when calculating daily reporting intervals, server latency, errors in creative trafficking, browser caching, and third party ad blocking. Notwithstanding anything to the contrary, Customer acknowledges that (i) its use of the Services, placement of System ad tags on web pages, and provision of Ads, content and other data to Company hereunder are for the purpose of purchasing Internet advertising and related services under this Agreement, and that such purchases will be recorded by the Services; (ii) other than with respect to errors caused solely by Company’s gross negligence or willful misconduct, all applicable Fees will be calculated based on quantities reported by the Services; (iii) Company may accept, reject or suspend (even after any initial acceptance), any Campaign (as defined below), or any specific Ad, or any portion thereof, at its sole discretion, including to the extent such Campaign or content violates the requirements set forth in Section 2; (iv) Company will be responsible for determining the size, placement and positioning of Ads; (v) Company will use commercially reasonable efforts to direct Ads based on the criteria you set forth in your Campaign though Company does not guarantee that your Campaign or Ads will reach Customer’s intended audience or reach Customer’s performance goals, including with respect to any desired number of clicks or impressions; (vi) Company does not guarantee that Internet advertising meeting Customer’s preferred criteria will be available, or that it will be available in the volume desired by Customer, or that Customer will be the successful bidder for such inventory, even where Company may have provided Customer with forecasts relating to availability and volume; and (vii) while Company will use reasonable efforts to filter fraudulent or erroneous clicks and related engagement activity, Company makes no guarantees as to the amount or method of clicks generates by any Campaign or Ad and shall have no responsibility for click fraud, invalid clicks or any related data or technological issues even where such issues may impact the cost of an applicable Campaign or Ad.
c.Testing. Customer authorizes Company and its affiliates to periodically conduct tests that may affect Customer’s usage of the Services, including Ad formatting; Ad targeting and keywords; destinations, mobile sites, software applications, URLs and other landing pages to which Ads direct viewers (“Destinations”); quality, ranking, performance, pricing, and auction prices for Ads. Notwithstanding anything to the contrary, Customer authorizes Company to conduct such tests without notice or compensation to Customer.
2. Customer Responsibilities.
a.Customer shall at all times (i) enter and otherwise provide accurate and complete information to Company and the System; (ii) secure, and upon Company’s request, provide documentation of, all necessary authorization from applicable third parties (including advertisers, web publishers and others) to distribute the Ads, Ad content and materials through the System and to place System ad tags on various web pages; (iii) ensure that third party ad tags utilized by Customer work reliably; (iv) ensure that Customer’s use of the Services and System, the Ads, content, materials, and Destinations connected to the Ads, and the web pages on which the System ad tags are placed, and the selection criteria used to target the Ads, do not violate applicable law (including, but not limited to, all laws applicable to consumer protection, consumer credit, privacy, and intellectual property), and do not cause damage or injury to Company or the System; (v) be prohibited from uploading or otherwise introducing into the Services any Ad, content or other information that includes or promotes pornography, violence, racism, hate, illegal drugs, illegal weapons, adware, malware, bit torrent, illegal file sharing, or that Company considers in good faith, at its sole discretion, to be offensive or otherwise inappropriate; (vi) pay all applicable Fees; and (vii) deem Company its non-exclusive preferred provider of DSP services, and use commercially reasonable efforts to run all online advertising campaigns through the Services.
b. Customer agrees that it is responsible for the use of the System (including the incurrence of costs and fees) by its employees, approved agents subcontractors, and any other users that gain access to the System via Customer’s login credentials, and that it will ensure such users comply with the terms of this Agreement and Customer shall be liable for any breach of this Agreement by any of the foregoing.
d. With the exception of unique identifier which is created, assigned or retained by Company relating to each user who interacts with a Destination, Customer shall not merge any Company-provided data and/or Decibel Data (as defined below with any PII or otherwise re-identifying, or attempting to re-identify, an individual for targeted advertising without obtaining specific opt-in consent from such individual.
e.Customer acknowledges that in the event of a breach of any requirements in Section 2 or Customer’s breach of its payment obligations hereunder, Company reserves the right to remove any applicable Ads and/or suspend or permanently deactivate Customer’s account in the System.
3. Third Party Components/Services.
b. Additional Third Party Terms. In addition to the foregoing, Certain Services may include additional components owned by third parties and Customer hereby agrees to comply with the relevant third party pass through terms contained therein.
4. Fees and Payments.
a. Fees. Customer shall timely pay to Company all applicable fees (the “Fees”) for the creation and/or placement of Ads based on the parameters and criteria, and according to the budget level, set forth on the campaign creation page made available as part of the Services (the “Campaign”). Unless otherwise stated as part of the Campaign, Fees shall be due and owing upon Customer’s receipt of an invoice.
b. Credit Reports. By creating a Campaign, Customer authorizes Company to obtain a personal and/or business credit report from a credit bureau, either at the time Customer creates a Campaign or at any time thereafter
c. Taxes. All invoiced amounts are exclusive of any and all value added, use, sales, service, property or other taxes or contributions. Customer shall be responsible for payment of any such value added, use, sales, service, property or other taxes or contributions that are, or should ultimately be, assessed against or required to be collected by Company in connection with Company’s performance hereunder (except to the extent Customer is exempt by law and can provide Company with a bona fide exemption certificate).
d. Disputes; Suspension of Services. In the event that Customer disputes, in good faith, any charges on an invoice, it shall notify Company with a detailed written explanation prior to the date that the invoiced amount is due and Customer shall continue to timely pay Company any portion of the invoice not subject to a good faith dispute. In the event that Company does not receive payment of any Fees, or other amounts due, within the time frames above, interest shall accrue at the rate of two percent (2%) per month (or the maximum rate allowed by law) and Company reserves the right, in addition to any other rights and in its sole discretion, to suspend or terminate access to the Services by such Customer and/or stop any and all Services being performed. In addition, Customer shall reimburse Company for the costs of collection including, without limitation, attorneys’ fees and expenses.
5. Proprietary Rights.
a. Ownership. All right, title and interest in and to all Services, Systems, Deliverables (as defined below) and any and all components and materials related to such items whether or not created, assembled, organized or produced by Company and modification and enhancements to any such items whether or not created by Company (“ Company Materials”) and any and all any patents, patent applications, trademarks, trade secrets, copyrights, and all other similar items of intellectual property, whether registered or unregistered, any and all applications thereto, including any common law or other rights created by use thereof, all proceeds thereof (such as by the way of example any licenses, royalties and proceeds of current infringements), and the right to sue for past, present and future infringements therein (collectively “ Intellectual Property Rights”) shall belong exclusively to Company, and all rights granted to Customer under the Agreement are expressly limited to the license granted herein.
b. License. Subject to the terms and conditions of the Agreement and subject to receipt of all applicable Fees and other amounts due hereunder, Company hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the Term to access and use the System and Services for the sole purpose of (i) uploading Customer Information; and (ii) viewing, downloading, importing, or otherwise managing any reports, tables or data created or prepared by Company in the course of performing the Services (“Deliverables”).
c. Limitations. Customer may only use the Company Materials in its own business and pursuant to the terms of the Agreement, including any additional terms or restrictions set forth as part of the Campaign, and shall ensure that its authorized employees and agents that utilize the Services comply with the terms herein. Customer agrees that it shall not, in whole or in part, at any time during or after the Term: (i) sell, assign, sub-licensee, lease, distribute, transfer, communicate or disclose any of the Company Materials to any third party; (ii) modify or attempt to modify any of the Company Materials or decompile, reverse engineer, create or recreate any related source code; (iii) use any of the Company Materials to provide services to, or to otherwise benefit, any third party; (iv) use any of the Company Materials to create a program having similar features or functions of the Company Materials; (v) remove or modify any copyright or other proprietary notice contained in any of the Company Materials; or (vi) allow others to do any of the foregoing. The licenses granted to Customer hereunder are specific to Customer and may not be conveyed in any way.
d. Customer Marks. Customer hereby provides Company with a limited, non-exclusive, royalty-free right and license to use Customer’s name, logo, ads, and any associated trademarks or service marks (collectively, “Customer Marks”) in connection with Company naming Customer as a customer in Company’s promotional and marketing materials. Notwithstanding the contrary, other than with respect to the limited license set forth in this Section, Customer shall retain all right, title and interest in the Customer Marks.
6. Representations, Warranties, Regulatory Compliance .
a. Duly Authorized. Each party represents and warrants that it is duly authorized to enter into the Agreement, it has the authorization to grant the rights herein, its performance of the Agreement will not breach any separate agreement to which it is bound, and that the Agreement, upon execution and delivery, represents a binding obligation of such party, enforceable in accordance with its terms.
b. Services. Company warrants that the Services will be provided in a professional and workmanlike manner consistent with industry practices.
c. Regulatory Compliance. Each party shall comply with all federal, state, and local laws and regulations that are applicable to its respective business and the performance of its obligations under the Agreement.
7. DISCLAIMERS; LIMITATION OF LIABILITY.
a. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER OR THAT THE SERVICES PROVIDED WILL BE UNINTERRUPTED, TIMELY, ERROR-FREE OR NON-INFRINGING. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE BENEFITS OR RESULTS THAT CUSTOMER WILL RECEIVE FROM THE SERVICES. TO THE EXTENT THE SERVICES INCLUDE OR COMPANY OTHERWISE PROVIDES A THIRD PARTY’S PROGRAMS, DATA OR OTHER SERVICES OR PRODUCTS, INCLUDING, BUT NOT LIMITED TO, SOFTWARE OR SERVICES PROVIDED BY DECIBEL, IT DOES SO ON AN “AS IS” BASIS AND MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT THERETO, AND COMPANY SHALL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER FOR THE ACTS OR OMISSIONS OF SUCH THIRD PARTIES.
b. COMPANY SHALL HAVE NO LIABILITY WHATSOEVER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST REVENUE OR PROFITS, LOSS OF DATA, LOSS OF OPPORTUNITY OR DISRUPTION OF BUSINESS) OF THE CUSTOMER OR ANY THIRD PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION AGAINST COMPANY, ITS AFFILIATES, ITS VENDORS OR ITS SUBCONTRACTORS IN CONNECTION WITH THE PERFORMANCE OF THE SERVICES AND REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, STRICT LIABILITY, TORT INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE ACTION) SHALL BE LIMITED TO PAYMENT FOR ACTUAL DAMAGES UP TO A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE TOTAL AMOUNTS PAID TO COMPANY HEREUNDER DURING THE THIRTY (30) DAYS PRECEDING THE DATE THE CAUSE OF ACTION AROSE. OTHER THAN WITH RESPECT TO COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR LOSS, COSTS, DAMAGES, OR EXPENSES INCURRED IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES, INCLUDING WITH RESPECT TO ANY TECHNICAL MALFUNCTION, INPUTTING ERRORS, SYSTEM ERRORS, CORRUPTION OR LOSS OF DATA, OR OTHER DAMAGES.
8. Term and Termination.
a. Term. The term of this Agreement shall commence on the Effective Date and shall continue until terminated as permitted hereunder (the “Term”).
b. Termination. The Agreement may only be terminated prior to the expiration of the Initial Term or then-current Renewal Term as follows:
(i) Unless otherwise provided herein, by either party by providing at least two (2) days’ written notice to the other party.
(ii) In the event that either party breaches any term or condition of the Agreement in any material respect (other than a breach under subsections 6(b)(iii)-(iv) which shall be governed by those subsections), the other party shall have the right to terminate the Agreement if the breaching party has not cured such breach within thirty (30) days of receiving written notice from the non-breaching party.
(iii) Either party may terminate the Agreement immediately upon written notice in the event: (A) the other party commences or becomes the subject of any bankruptcy, insolvency, or equivalent case or proceeding; (B) the other party makes a general assignment for the benefit of its creditors; (C) a trustee or receiver is appointed for the other party, or for any of its property; or (D) any petition by or on behalf of the other party is filed to take advantage of any debtor’s act or to reorganize under the bankruptcy or similar laws, which petition is not removed within sixty (60) days after filing.
(iv) Company may, in its sole discretion, terminate the Agreement immediately upon written notice in the event of (i) any unauthorized or unlawful usage by Customer or any third party gaining access to the Services, directly or indirectly, through or as a result of Customer’s use of the Services; or (ii) Company’s determination, in its sole discretion, that any Campaigns, Ads, or any portions thereof, violate any of the requirements set forth in Section 2 .
c. Effect of Termination. Upon termination of the Agreement Customer may no longer access the Services or other Company Materials or any rights or licenses granted to Customer hereunder. The terms of Sections 2(d), 5(a), 5(d), 7, 8(c), 9, 11 and 12. shall survive the termination or expiration of the Agreement. Notwithstanding anything to the contrary, Customer will remain liable after termination or expiration for all applicable Fees for Services performed prior to the effective date of termination as well as any non-cancellable charges, including, but not limited to, costs of any Ads purchased or placed by Company prior to such date. Other than in the event of a termination for Customer’s breach, Company shall provide Customer with a refund of a pro rata share of any unused prepaid Fees as of the effective date of termination.
a.“Confidential Information” means any and all business, financial or technical information or data in any form or medium, tangible or intangible, used in or relating to the business activities or operations of the disclosing party which is disclosed, either orally or in writing, by the disclosing party to the receiving party, whether on, before or after the date of the Agreement, including without limitation Intellectual Property Rights; data, know-how, business rules, reports, summaries, processes, samples, ideas, research and development, security procedures and passwords; computer software and programs; database technologies, systems, structures and architectures; marketing plans, business plans, strategies, forecasts, financial information, customer lists, price lists, market studies, business plans; and information regarding suppliers, dealers, affiliates, subsidiaries, investors, or lenders.
b. Each party shall take all reasonable steps to prevent the disclosure of the other party’s Confidential Information in violation of the Agreement, which shall be no less than the steps it takes to protect its own Confidential Information. Each party shall use its reasonable efforts to confine knowledge of the other party’s Confidential Information to its employees and agents who have a reasonable need to know Confidential Information disclosed hereunder (“Representatives”) provided that prior to any disclosure to a Representative such Representative has either (i) executed a written agreement to keep such Confidential Information confidential on at least the same terms as described herein, or (ii) is subject to a professional obligation to maintain the confidentiality of such information; and provided further that the receiving party shall remain liable to the disclosing party for any breaches of the Agreement by its Representatives.
c. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
d. Confidential Information shall not include information that (i) is or becomes publicly available through no breach or omission of the receiving party; (ii) was lawfully in the possession of the receiving party prior to the disclosure of by the disclosing party; (iii) is lawfully disclosed to the receiving party from a source other than the disclosing party, provided that such source is not bound by any fiduciary, contractual or legal duties of confidentiality; and (iv) is lawfully and independently developed by the receiving party, which can be established by written evidence.
e.In order for Company to provide the Services and deliver the Deliverables, Customer will be required to provide Company and its affiliates, including Decibel, with data concerning Customer, its products and/or services and customers, including any content or data to be used in connection with Ads generated or placed via the Services and any personal data contained therein (“Customer Information”). Such Customer Information may be generated by Customer’s use of the Services and hosted on servers under the possession or control of Decibel. Customer hereby grants Company and its authorized subcontractors and service providers, including, but not limited to, Decibel, a non-exclusive, royalty-free right and license (i) to have access to and make use of the Customer Information as necessary for the performance of Services; (ii) store in the System(s) any and all Customer Information; and (iii) to use Customer Information, as well as any data or information generated by Customer’s use of the Services, for research, analytics and Company’s business purposes. Customer acknowledges that it is Customer’s sole responsibility to ensure that the Customer Information is accurate and up-to-date and Company will not be able to perform the Services in the event Customer fails to maintain accurate Customer Information. Customer grants to Company a perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client regarding the Services or System.
f. Customer expressly acknowledges and agrees that any ideas, concepts, know-how, methods, models, data, techniques, business rules, skill, knowledge and experience that were or are used, developed or gained by Company or any of its personnel and all components thereof, including without limitation the Company Materials and any websites, systems, reports or tools made available to Customer in connection with the performance of the Services and delivery of the Deliverables are owned by Company as provided herein and are the Confidential Information of Company.
g. Upon termination of this Agreement for any reason, or upon or on the disclosing party’s request at any time, the receiving party will promptly deliver to the disclosing party, or, at the disclosing party’s option, destroy, all notes, memoranda, programs, computer memory media, equipment and all other materials containing the disclosing party’s Confidential Information and will not retain any copies thereof, other than as permitted under this Agreement. The receiving party shall promptly provide the disclosing party with written certification of such return or destruction of Confidential Information. To the extent that any Confidential Information is retained as permitted hereunder, or to the extent that copies of any Confidential Information are stored in electronic archives or backups made in the ordinary course of business in accordance with applicable legal, disaster recovery and professional requirements, all such Confidential Information shall continue to be governed by the provisions of this Section.
11. Indemnification. Customer agrees to indemnify, defend and hold harmless Company and its affiliates, subsidiaries, employees, agents, shareholders, officers, directors and attorneys from and against any and all claims, costs, damages, losses, liabilities, fines, penalties, settlements and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Information, including, but not limited to, the Ads or advertising content, or the content of any Destination, infringes the rights of, or has caused harm to, a third party, including but not limited to claims that the Customer Information violates the intellectual property rights or privacy of any third party or is illegal, deceptive, defamatory, or obscene; or (ii) any breach of Customer’s representations or warranties or Customer’s failure to fulfill any of its obligations under the Agreement.
a. Assignment. This Agreement shall be binding upon and shall inure to the benefit of Company and Customer and their respective successors and permitted assigns. This Agreement may not be assigned by either party, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, upon written notice but without consent of the other party, in connection with a (i) merger, acquisition, corporate reorganization resulting in a change of voting control, or (ii) sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
b. Force Majeure. Neither party shall be liable for any delay (except for obligations to pay all Fees and other payments hereunder) or other failure of performance caused by reasonably unforeseeable factors beyond its control, including without limitation strikes, riots, insurrection, labor shortage, earthquake, hurricane, epidemic, war, acts of terrorism, fire, acts of God, or governmental acts or regulation.
c. Independent Contractor. The parties are independent contractors, and nothing in the Agreement or the performance of the Services or the delivery of Deliverables shall be considered to create a partnership, joint venture or similar relationship between the Parties.
d. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of law provisions. Each party agrees that any dispute shall be brought exclusively in the state or federal courts sitting within the judiciary district of the United States District Court in Delaware, and that it will submit to the jurisdiction of the state or federal courts therein, and to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
e. Notices. All demands, notices and communications required or permitted under this Agreement shall be in writing and shall be deemed given (i) upon personal delivery to the party to be notified, (ii) upon sending if by email (with confirmation), if sent during normal business hours and, if not, then on the next business day, (iii) three (3) days after mailing, if sent by registered or certified mail, return receipt requested, postage prepaid, or (iv) one day after dispatch, if sent by a nationally recognized overnight courier, with respect to Company, address to Decibel Media, Inc. 701 Tillery Street Suite 12 Austin, TX 78702 US; and with respect to Customer, to the address furnished to Company while creating an account for use of the Services or otherwise furnished in writing.
f. Miscellaneous. If any provision of the Agreement (or any portion thereof) shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder hereof shall not in any way be affected or impaired thereby. The headings in the Agreement are intended for convenience of reference and shall not affect its interpretation. This Agreement, including any additional terms or restrictions set forth as part of the Campaign, and any related exhibits or amendments contain the entire agreement of the parties with respect to its subject matter and supersede all existing agreements and all other oral, written or other communications between them concerning its subject matter. Neither party’s failure to enforce strict performance of any provision of the Agreement will constitute a waiver of a right to subsequently enforce such a provision. No written waiver shall constitute, or be construed as, a waiver of any other obligation or condition of the Agreement. This Agreement may be amended by the parties, provided that no amendment, modification or waiver of the Agreement shall be valid unless made in writing and signed by an authorized representative of the party to be charged.